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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


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CASES 


ON 


COMMON  LAW  PLEADING 


SELECTED  FROM  DECISIONS  OF 


ENGLISH  AND  AMERICAN  COURTS 


PARTS  I  AND  II  BY 

CLARKE  B.  WHITTIER,  A.B.,  LL.  B. 

PROFESSOR  OF  LAW  IN  LELAND  STANFORD  JUNIOR  UNIVERSITY 

PART  III  BY 

EDMUND  M.  MORGAN 

PROFESSOR  OF  LAW  IN  THE  UNIVERSITY  OF  MINNESOTA 


AMERICAN  CASEBOOK  SERIES 
WILLIAM  R.  VANCE 

GENERAL  EDITOR 


ST.    PAUL 

WE3T  PUBLISHING  COMPANY 
1916 


Copyright,  1911 

BY 

WEST  PUBLISHING  COMPANY 


Copyright,  1912 

BY 

WEST  PUBLISHING   COMPANY 


Copyright,  1916 

BY 

WEST   PUBLISHING  COMPANY 

(Whit.C.L.Pl.) 
(ii) 


^V/t 


I 


THE  AMERICAN  CASEBOOK  SERIES 


Thk  first  of  the  American  Casebook  Series,  Mikell's  Cases  on  Crim- 
inal Law,  issued  in  December,  1908,  contained  in  its  preface  an  able 
argument  by  Mr.  James  Brown  Scott,  the  General  Editor  of  the  Se- 
ries, in  favor  of  the  case  method  of  law  teaching.  This  preface  has 
appeared  in  each  of  the  volumes  published  in  the  series  up  to  the 
present  time.  But  the  teachers  of  law  have  moved  onward,  and  the 
argument  that  was  necessary  in  1908  has  now  become  needless.  That 
such  is  the  case  becomes  strikingly  manifest  to  one  examining  three  im- 
portant documents  that  fittingly  mark  the  progress  of  legal  education 
in  America.  In  1893  the  United  States  Bureau  of  Education  pub- 
lished a  report  on  Legal  Education  prepared  by  the  American  Bar  As- 
sociation's Committee  on  Legal  Education,  and  manifestly  the  work 
of  that  Committee's  accomplished  chairman,  William  G.  Hammond, 
in  which  the  three  methods  of  teaching  law  then  in  vogue — that  is,  by 
lectures,  by  text-book,  and  by  selected  cases — were  described  and  com- 
mented upon,  but  without  indication  of  preference.  The  next  report 
of  the  Bureau  of  Education  dealing  with  legal  education,  published 
in  1914,  contains  these  unequivocal  statements. 

"To-day  the  case  method  .forms  the  principal,  if  not  the  exclusive, 
method  of  teaching  in  nearly  all  of  the  stronger  law  schools  of  the 
country.  Lectures  on  special  subjects  are  of  course  still  delivered  in 
all  law  schools,  and  this  doubtless  always  will  be  the  case.  But  for 
staple  instruction  in  the  important  branches  of  common  law  the  case 
has  proved  itself  as  the  best  available  material  for  use  practically  ev- 
erywhere. *  *  *  The  case  method  is  to-day  the  principal  method 
of  instruction  in  the  great  majority  of  the  schools  of  this  country." 

But  the  most  striking  evidence  of  the  present  stage  of  development 
of  legal  instruction  in  American  Law  Schools  is  to  be  found  in  the 
special  report,  made  by  Professor  Redlich  to  the  Carnegie  Foundation 
for  the  Advancement  of  Teaching,  on  "The  Case  Method  in  x\merican 
Law  Schools."  Professor  Redlich,  of  the  Faculty  of  Law  in  the  Uni- 
versity of  Vienna,  was  brought  to  this  country  to  make  a  special  study 
of  methods  of  legal  instruction  in  the  United  States  from  the  stand- 
point of  one  free  from  those  prejudices  necessarily  engendered  in 
American  teachers  through  their  relation  to  the  struggle  for  supremacy 
so  long,  and  at  one  time  so  vehemently,  waged  among  the  rival  sys- 
tems.    Frjarn  this  masterly  report,   so  replete  with  brilliant  analysis 

(iii) 


IV  PREFACE 

and  discriminating  comment,  the  following  brief  extracts  are  taken. 
Speaking  of  the  text-book  method  Professor  Redlich  says : 

"The  principles  are  laid  down  in  the  text-book  and  in  the  profes- 
sor's lectures,  ready  made  and  neatly  rounded,  the  predigested  essence 
of  many  judicial  decisions.  The  pupil  has  simply  to  accept  them  and 
to  inscribe  them  so  far  as  possible  in  his  memory.  In  this  way  the 
scientific  element  of  instruction  is  apparently  excluded  from  the  very 
first.  Even  though  the  representatives  of  this  instruction  certainly  do 
regard  law  as  a  science — that  is  to  say,  as  a  system  of  thought,  a  group- 
ing of  concepts  to  be  satisfactorily  explained  by  historical  research  and 
logical  deduction — they  are  not  willing  to  teach  this  science,  but  only 
its  results.  The  inevitable  danger  which  appears  to  accompany  this 
method  of  teaching  is  that  of  developing  a  mechanical,  superficial  in- 
struction in  abstract  maxims,  instead  of  a  genuine  intellectual  probing 
of  the  subject-matter  of  the  law,  fulfilling  the  requirements  of  a 
science." 

Turning  to  the  case  method  Professor  Redlich  comments  as  follows : 
"It  emphasizes  the  scientific  character  of  legal  thought;  it  goes  now 
a  step  further,  however,  and  demands  that  law,  just  because  it  is  a 
science,  must  also  be  taught  scientifically.  From  this  point  of  view  it 
very  properly  rejects  the  elementary  school  type  of  existing  legal  edu- 
cation as  inadequate  to  develop  the  specific  legal  mode  of  thinking,  as 
inadequate  to  make  the  basis,  the  logical  foundation,  of  the  separate 
legal  principles  really  intelligible  to  the  students.  Consequently,  as  the 
method  was  developed,  it  laid  the  main  emphasis  upon  precisely  that 
aspect  of  the  training  which  the  older  text-book  school  entirely  neg- 
lected— the  training  of  the  student  in  intellectual  independence,  in  in- 
dividual thinking,  in  digging  out  the  principles  through  penetrating 
analysis  of  the  material  found  within  separate  cases ;  material  which 
contains,  all  mixed  in  with  one  another,  both  the  facts,  as  life  creates 
them,  which  generate  the  law,  and  at  the  same  time  rules  of  the  law 
itself,  component  parts  of  the  general  system.  In  the  fact  that,  as  has 
been  said  before,  it  has  actually  accomplished  this  purpose,  lies  the 
great  success  of  the  case  method.  For  it  really  teaches  the  pupil  to 
think  in  the  way  that  any  practical  lawyer — whether  dealing  with  writ- 
ten or  with  unwritten  law — ought  to  and  has  to  think.  It  prepares  the 
student  in  precisely  the  way  which,  in  a  country  of  case  law,  leads  to' 
full  powers  of  legal  understanding  and  legal  acumen ;  that  is  to  say, 
by  making  the  law  pupil  familiar  with  the  law  through  incessant  prac- 
tice in  the  analysis  of  law  cases,  where  the  concepts,  principles,  and 
rules  of  Anglo-American  law  are  recorded,  not  as  dry  abstractions,  but 
as  cardinal  realities  in  the  inexhaustibly  rich,  ceaselessly  fluctuating, 
social  and  economic  life  of  man.  Thus  in  the  modern  American  law 
school  professional  practice  is  preceded  by  a  genuine  course  of  study, 
the  methods  of  which  are  perfectly  adapted  to  the  nature  of  the  com- 
mon law." 


PREFACE  V 

The  general  purpose  and  scope  of  this  series  were  clearly  stated  in 
the  original  announcement: 

"The  General  Editor  takes  pleasure  in  announcing  a  series  of  schol- 
arly casebooks,  prepared  with  special  reference  to  the  needs  and  limi- 
tations of  the  classroom,  on  the  fundamental  subjects  of  legal  educa- 
tion, which,  through  a  judicious  rearrangement  of  emphasis,  shall  pro- 
vide adequate  training  combined  with  a  thorough  knowledge  of  the 
general  principles  of  the  subject.  The  collection  will  develop  the  law 
historically  and  scientifically;  English  cases  will  give  the  origin  and 
development  of  the  law  in  England ;  American  cases  will  trace  its  ex- 
pansion and  modification  in  America ;  notes  and  annotations  will  sug- 
gest phases  omitted  in  the  printed  case.  Cumulative  references  will  be 
avoided,  for  the  footnote  may  not  hope  to  rival  the  digest.  The  law 
will  thus  be  presented  as  an  organic  growth,  and  the  necessary  con- 
nection between  the  past  and  the  present  will  be  obvious. 

'The  importance  and  difliculty  of  the  subject  as  well  as  the  time  that 
^an  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. *  *  *  If  it  be  granted  that  all,  or  nearly  all,  the  studies  re- 
quired for  admission  to  the  bar  should  be  studied  in  course  by  every 
student — and  the  soundness  of  this  contention  can  hardly  be  seriously 
doubted — it  follows  necessarily  that  the  preparation  and  publication  of 
collections  of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine 
and  by  no  means  unimportant  service  to  the  cause  of  legal  education. 
And  this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief.     *     *     * 

"The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

Administrative  Law.  Evidence. 

Agency.  Insurance. 

Bills  and  Notes.  International  Law. 

Carriers.  Jurisprudence. 

Contracts.  Mortgages. 

Corporations.  Partnership. 

Constitutional  Law.  Personal  Property. 

Criminal  Law.  r,     i   n  .      f  ^^''  "^^^^• 

^  .    .     ,   T-,         ,  Real  Property.  4  2d 

Cnmmal  Procedure.  [  3d       '• 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales. 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.—  Trusts. 

Equity  Pleading.  Wills  and  Administration. 


VI  PREFACE 

"International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trinsic importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 
and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case.  , 

"The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  classroom  and  the  needs  of  the  students  will  furnish 
a  sound  basis  of  selection." 

Since  this  announcement  of  the  Series  was  first  made  there  have 
been  published,  or  put  in  press,  books  on  the  following  subjects: 

Administrative  Lazv.  By  Ernst  Freund,  Professor  of  Law,  Univer- 
sity of  Chicago. 

Agency.  By  Edwin  C.  Goddard,  Professor  of  Law,  University  of 
Michigan. 

Bills  and  Notes.  By  Howard  L.  Smith,  Professor  of  Law,  Univer- 
sity of  Wisconsin,  and  William  U.  Moore,  Professor  of  Law, 
Columbia  University. 

'Carriers.  By  Frederick  Green,  Professor  of  Law,  University  of  Ill- 
inois. 

Conflict  of  Lazvs.  By  Ernest  G.  Lorenzen,  Professor  of  Law,  Uni- 
versity of  Minnesota. 

Constitutional  Lazv.  By  James  Parker  Hall,  Dean  of  the  University 
of  Chicago  Law  School. 

Corporations.  By  Harry  S.  Richards,  Dean  of  the  University  of  Wis- 
consin Law  School. 

Criminal  Law.  By  William  E.  Mikell,  Dean  of  the  University  of 
Pennsylvania  Law  School. 

Criminal  Procedure.  By  William  E.  Mikell,  Dean  of  the  University 
of  Pennsylvania  Law  School. 

Damages.  By  Floyd  R.  Mechem,  Professor  of  Law,  Chicago  Univer- 
sity, and  Barry  Gilbert,  Professor  of  Law,  University  of  Illinois. 

Equity.  By  George  H.  Boke,  Professor  of  Law,  University  of  Cali- 
fornia. 

Insurance.  By  W.  R.  Vance,  Dean  of  the  University  of  Minnesota 
Law  School. 

Partnership.  By  Eugene  A.  Gilmore,  Professor  pf  Law,  University  of 
Wisconsin. 

Persons  (including  Marriage  and  Divorce).  By  Albert  AI.  Kales,  Pro- 
fessor of  Law,  Northwestern  University,  and  Chester  G.  Vernier, 
Professor  of  Law,  University  of  Illinois. 

Pleading  {Common  Lazv).  By  Clarke  B.  Whittier,  Professor  of  Law, 
Stanford  University,  and  Edmund  M.  Morgan,  Professor  of  Law, 
University  of  Minnesota. 


PREFACE  Vll 

Property  (Titles  to  Real  Property).     By  Ralph  W.  Aigler,  Professor 

of  Law,  University  of  Michigan  Law  School. 
Quasi  Contracts.     By  Edward  S.  Thurston,  Professor  of  Law,  Uni- 
versity of  Minnesota. 
Sales.     By  Frederic  C.  Woodward,  Professor  of  Law,  University  of 

Chicago. 
Suretyship.     By  Crawford  D.  Hening,  Professor  of  Law,  University 

of  Pennsylvania. 
Torts.     By  Charles   M.   Hepburn,   Professor  of   Law,  University  of 

Indiana. 
Trusts.    By  Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of 

New  York. 
Wills  and  Administration.    By  George  P.  Costigan,  Jr.,  Professor  of 

Law,  Northwestern  University. 

It  is  earnestly  hoped  and  believed  that  the  books  thus  far  published 
in  this  series,  with  the  sincere  purpose  of  furthering  scientific  training 
in  the  law,  have  not  been  without  their  influence  in  bringing  about  a 
fuller  understanding  and  a  wider  use  of  the  case  method. 


The  following  well-known  teachers  of  law  are  at  present  actively 
engaged  in  the  preparation  of  casebooks  on  the  subjects  indicated  be- 
low: 

Edward  W.  Hinton,  Professor  of  Law,  University  of  Chicago.     Sub- 
ject, Evidence. 
Arthur  L.  Corbin,  Professor  of  Law,  Yale  University.     Subject,  Con- 
tracts. 
James  Brown  Scott,  Professor  of  International  Law,  Johns  Hopkins 

University.     Subject,  International  Law. 
A.   M.   Cathcart,   Professor  of   Law,   Stanford  University.     Subject, 
Code  Pleading. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.     Sub- 
ject, Property. 

Harry  A.  Bigelow,  Professor  of  Law,  University  of  Chicago.    Subject, 
Property. 

William  R.  Vancu, 

General  Editor. 
September,  1916. 


NOTE 

A  WORD  or  two  in  explanation  of  the  following  pages  may  be  of  serv- 
ice. In  general,  names  and  arguments  of  counsel,  unnecessary  details 
in  the  statement  of  facts,  parts  of  the  opinion  not  germane  to  the  mat- 
ter in  hand,  and  of  course  the  headnotes,  have  been  omitted. 

In  annotations  my  aim  has  been  to  indicate  the  state  of  the  authori- 
ties without  overloading  the  notes.  On  well-settled  points  to  cite  a 
few  of  the  best  cases,  with  a  reference  to  some  encyclopedia  or  text 
where  the  cases  are  collected,  has  been  my  plan.  On  points  less  well 
settled,  or  concerning  which  no  good  collections  of  cases  were  avail- 
able, I  have  usually  cited  one  case  from  each  state  in  which  authority 
was  found.  An  attempt  was  made  to  cite  the  most  valuable  case  from 
each  state.  On  recondite  points  all  the  authority  at  hand  has  been 
cited. 

On  many  points  there  are  numerous  Code  cases  accord  or  contra. 
These  have  not  been  cited.  .Often  a  reference  to  an  encyclopedia, 
where  the  Code  cases  are  collected,  has  been  added. 

Several  states,  Alabama  and  Massachusetts,  for  example,  are  nei- 
ther Code  nor  common-law  states.  From  such  states  in  general  only 
cases  that  illustrate  doctrines  prevalent  in  the  common-law  states  have 
been  cited.  Cases  depending  on  a  statute  similar  to  some  typical  Code 
provision  have  been  omitted. 

In  dealing  with  necessary  allegations,  questions  concerning  allega- 
tions of  time,  place,  description,  value  and  damages  have  been  omitted. 
These  can  be  dealt  with  more  expeditiously  if  treated  once  for  all, 
without  repetition  for  each  form  of  action.  They  will  be  so  treated  in 
a  later  portion  of  the  work. 

The  book  will  be  completed  in  two  additional  parts :  Part  two, 
about  175  pages,  on  contract  forms  of  action;  part  three,  about  175 
pages,  on  principles  applicable  throughout  the  forms  of  action. 

Part  one,  entitled  "Pleadings  in  Tort  Actions,"  has  been  issued. 
The  book  will  be  completed  in  one  additional  part,  of  about  200  pages, 
dealing  with  principles  applicable  throughout  the  forms  of  action. 

Chicago,  111.,  March  1,  1912.  Clark^   B.   WhiTTiEr. 

NOTE 

The  general  plan  outlined  above  has  been  adhered  to  in  the  prepara- 
tion of  Part  III,  except  that  the  annotations  are  somewhat  different 
in  character  and  contain  fewer  citations  of  cases.  Professor  Whittier's 
analysis  of  the  subject,  kindly  furnished  me  by  him,  has  been  closely 
followed.  -*  Edmund  M.  Morgan. 

Minneapolis,  Sept.  21,  1916. 

(ix)* 


TABLE  OF  CONTENTS 


PART  I 
Pleadings  in  Tort  Actions 

CHAPTER  I 

Trespass 
jVection  Page 

1.  Scope  of  the  Action 1 

2.  Necessary  Allegations   25 

3.  Defenses    .' 32 

CHAPTER  II 

Ejectment 

1.  Introduction     48 

2.  Scope  of  the  Action  55 

3.  Necessary  Allegations 61 

i.  Defenses    66 

CHAPTER  III 

Case 

1.  Scope  of  the  Action   75 

2.  Necessary  Allegations   88 

3.  Defenses    176 

CHAPTER  IV 
Trover 

1.  Scope  of  the  Action   189 

2.  Necessary  Allegations   195 

3.  Defenses    200 

CHAPTER  V 

Replevin 

1.  Scope  of  the  Action   211 

2.  Necessary  Allegations    22G 

3.  Defenses    229 

WniT.C.L.PL.  (xi) 


Xii  TABLE   OF   CONTENTS 

PART    II 

PLiiADiNGS  IN  Contract  Actions 

CHAPTER  I 

Special  and  General  (Indebitatus)  Assumpsit 
Section  Page 

1.  Scope  of  These  Actions   -*47 

2.  Necessary  Allegations    -88 

I.     Special    Assumpsit    288 

II.     General    Assumpsit    '''14 

3.  Defenses    337 

CHAPTER  II 

Debt 

1.  Scope  of  the  Action   349 

2.  Necessary  Allegations   370 

3.  Defenses    386 

CHAPTER  III 
Covenant    403 


PART  III 

PRiNciPLr;s  OF  Ge;ne;ral  Application 

CHAPTER  I 

Concerning  Substance 

1.  Damage    409 

2.  Value 418 

3.  Agency    419 

4.  Compliance  with  Statute 420 

5.  Construction  of  Pleadings   424 

6.  Theory  of  Pleading 42.5 

7.  Allegations  of  Evidence   427 

8.  Conclusions    from    Evidence 430 

9.  Allegations  of  Law 432 

10.  Incorporation  by  Reference 436 

11.  Judicial   Notice    438 

12.  Partial  Defenses   " 439 

13.  Overnarrow    Denials    441 

14.  Negative  Pregnant    44.5 

15.  Inconsistency    446 

16.  Departure    453 

17.  New  Assignment    459 

18.  Anticipatory  Allegations  465 


TABLE   OF   CONTENTS  Xlll 


CHAPTER  II 

Concerning  Form 

Section  Page 

1.  Commencements  and  Conclusions  473 

2.  Puis  Darrein  Continuance 478 

3.  Place     4S3 

4.  Time     486 

5.  Description    488 

6.  Bills  of  Particulars    4{)1 

7.  Duplicity    495 

8.  Plea  and  Demurrer   509 

9.  Argumentativeness    510 

10.  Recitals    515 

11.  Hypothetical  Pleading 519 

CHAPTER  III 

Objections  to  Defects 

1.  Demurrers     521 

2.  Motions  to  Strike  536 

3.  Objection  to  Evidence  538 

4.  Nonsuit     541 

5.  Arrest  of  Judgment 542 

6.  Judgment  Notwithstanding  Verdict  552 

7.  Error    555 

CHAPTER  IV 

Cueing  Defects 

1.  Express  Aider    , 558 

2.  Pleading  Over   .560 

3.  Waiver    561 

4.  Default  and  Verdict 564 

5.  Amendments     566 

CHAPTER  V 
Dilatory  Objections 

1.  Anticipating  in  Declaration  597 

2.  Pleas  to  the  Merits,  etc 607 

3.  Dilatory  Pleas   616 

CHAPTER  VI 

Cross-Demands 

1.  Recoupment     631 

2.  Set-Off    636 

* 


TABLE  OF  CASES 

[cases  cited  in  footnotes  ake  indicated  by  italics,    wuere  small  capitals 

AEE   USED,   the   CASE   IS    UEFEKRED   TO    IN   THE   TEXT] 


Adams  v.  Way 

Alabama,  etc.,  Go.  v.  Heald 

Aldine  Mtg.  Co.  v.  Barnard 

Allen  V.  Smith 

Allen  V.  Tuscarora  Valley  R.  Co.. . 

Allen  V.  Watson 

Ailing    V.    Shelton 

Anonymous    

Anonymous    

Archambeau  v.  New  York  &  N.  E. 

R.   Co 

Aseltine  v.  Perry 

Atwood  V.  Lucas 

Aulieer  v.  Barker 

Auburn   &    Owasco    Canal    Co.    v. 

Leitcli     

Ayer  v.  Bartlett 

Ayer  v.  Gleason 

Bacon  v.  Schepflin 

Bahr  v.  Natiotial,  etc.,  Co 

Baily  v.  Smith 

Baker  v.  Malone 

Balcer  v.  Warner 

Baltimore  &   O.   R.    Co.   v.   Polly, 
Woods  &  Co .' . 

Barber  v.  Rose 

Bardons  v.  Selby 

Barnum  v.  Baltimore  &  O.  R.  Co. 

Basan  v.  Arnold 

Bauman  v.  Bean 

Beatty  v.  Parsons 

Bedell  v.  Stevens 

Bellows    V.    Butler 

Belmont  Bank  of  St.  Clairsville  v. 
Beebe    

Benham  v.  Mornington  (Earl  of).  . 

Bennington    Iron    Co.    v.    Ruther- 
ford     

Bernard  v.  Elder 

Betts    V.    Hoyt 

Bird  v.   Randall 

Bishop  V.  Camp 

Blaclcstone  Nat.  Bank  v.  Lane. . . 

Bogard  v.  Illinois  Cent.  R.  Co 

Bond  V.   Mitchell 

Bonney  v.  Seely 

Boss  v.   Litton 

Bovey  v.  Castleman 

Wuit.C.L.Pl.— b 


538 
591 
315 
41(3 
5S5 
456 
(12S 
349 
520 

178 
494 
310 
500 

530 

84 
592 

618 
580 
477 
190 
543 

343 
631 
503 
7 
442 
560 
512 
542 
47 

175 
510 

599 
67 
567 
4,S0 
630 
486 
491 
220 
319 
34 
247 


Brettun  v.  Anthony 136 

Briscoe  v.  Hill 534 

Brown  v.  Artcher  &  Van  Liet 39 

Brown  v.  Boorman 80 

Brown  v.  Connelly 187 

Brown  v.  Thurlow 515 

Buckland  v.  Green 593 

Buford  &  Pugh  v.  Kirkpatrick. .  398 

Bull  V.  Mathews 549 

BtiUard    v.    Bell 87 

Burgess  v.  Abbott 601 

Burser  v.  Martin 25 

Bush   V.    Glover 64 

Butterfleld    v.    Seligman 200 


Camp  d  Bros.  v.  Hall 

Carter  v.  Piper 

Casey  v.  Kimmel 

Charnley   v.   Winstanley 

Chewing  v.  Wilkinson 

Ghol)ania:n  v.  Waslihum  Wire  Co. 

City  V.  Anglin 583, 

City  of  Chicago  v.  Chicago  &  N. 

W.  R.  Co 

City  of  Elgin  v.  Thompson 

City  of  Newport  News  v.  Potter 

City  of  Orlando  v.  Heard 

City  of   Pawtucket  v.   Pawtucket 

Electric  Co 

Clark  V.  Latliam 

Clark  V.  Maloney 

Clement  v.  Fisher 

Cohurn  v.  Hopkins 

Coe   V.   Givan 

Coleman  v.  Southwick 

Comstock    V.    Oderman 

Cook  v.  Cox 

Cooke  V.   Thornton 

Corey  v.    Batli 

Courtenay  v.  P'Iarle 

Cox    V.  Providence  Gas  Co 

Coxe  V.  Tilghman 

Crockett  v.  Moore 

Crogate's    Case 

Gumming  v,  Butler 


428 


425 

400 
583 
588 

270 
5-16 
320 
119 

82 
620 
191 
151 
509 
636 
153 

45 
132 

IS 
412 

80 
427 
5S0 
358 
506 

68 


Dalton  V.  Rhode  Island  Co 124 

Band   v.   Kingscotc 405 

Davics  v.  Penton 530 


(XV) 


XVI 


TABLE   OF   CASES 


Page 

Davis  V.  Burgess 4S1 

Davis    V.    Sniitli 251 

Day  V.  Chisni 4.">4 

Dai/ton  V.    WiUiams 421 

Deming  v.  Grand  Trunk  R.  Co...  489 
Diamond    v.    Williamsburgh    Ins. 

Co 5r>S 

Dickerson  v.  Hendryx 71 

Ditcham  v.  Bond 402 

Dodd  V.  Kyffin 35 

Douglas  V.  Hennessy 403 

Drake  v.  Ladv  Ensley  Coal,  Iron 

&    R.    Co...'. 13 

Dug-an   V.    Wright W8 

Dunlevy  v.  Fenton 5;?2 

Dunn    V.    Sullivan 564 

Duvivier  v.  French 144 

Dyer    v.    Cleveland 363 

Edd-if    V.    Brad!/ 627 

Edwards    v.    Brown,    Harries    & 

Stephens     391 

Emerson  v.  Lakin 547 

English   V.   Burnell  &  Ingham . . .   244 

Ensley   R.    Co.   v.   Chewning 98 

E'rsl'irne    "r.    Hohnhach 509 

Expanded  Metal  Fireproofing  Co. 

V.    Boyce 265 

Ferguson    v.    Cappeau 301 

Ferrell    v.    Humphrey 234 

Finch's   Ex'rs   v.    Alston 4.3 

Findley  v.  Bullock 158 

First      Congregational      Meeting- 

House    See.   v.   Rochester 287 

Fisher  v.  Morris 37 

FlSlIER     V.     PiMBLEY 4.18 

Flanagan    v.    Camden    Mut.    Ins. 

Co 3.-i2 

Flanders    v.    Atkinson 597 

Flemming    v.    Ilol^oken 4.39 

Folsom    V.    Brawn 5<!2 

Fowler    v.    Benjamin 168 

Gardner  v.  Bxtckbee 208 

Gargan  v.   School  Dist.   No.  15..  396 

George  v.  Fisk  &  Norcross 89 

Gerber    v.    Grabel 95 

Gcrke    v.    Fanchcr 557 

Gerry  v.  Gerry 012 

GiBBS  V.    Bryant 2.52 

Gillespie  v.  Dew 21 

Goodhue    v.    Luce 619 

Good  right   v.    Rich    &    Govett 59 

Gordon  v.   .Tournal   Pub.   Co 486 

Gould  V.  Coal  &  Coke  R.  Co 518 

Gowland    v.    Warren 342 

Graham    v.    Peat 22 

Grand  Lodf/e  of  Masons  v.  Knox  685 

Grant    v.    Yaughan 280 

Green  v.  Seymour 420 

Green  v.  Thornton 375 


Page 

Greenwalt    v.    Horner 182 

Griffiths    v.    Eyles 519 

Grills    v.    Mannell 451 

Heiton   v.   Jeffreys 510 

Hale    V.    Hall/ 526 

Hale  V.  Laivrcnce .536 

Hall    V.    Middleton 463 

Halligan   v.   Chicago  &   R.   I.   R. 

Co 15 

Hart  V.  Tolman 383 

Hawkins    v.    Johnson 418 

Haynes  v.   Crutehfield 488 

Herrick  v.   Manly 33 

Hibbert   v.    Courthope 315 

Higgins  &  Bogue  v.  Hay  ward ...  28 

Hight   V.    Naylor 29 

Hill  V.   New  Haven 185 

Hobbs  V.  Ray 14 

Holliday    v.    McKinne 235 

Hopkius    v.    Burney 231 

Hopkins   v.    Hopkins 216 

Hoppin    V.    Jenckes 624 

Howk    V.    Pollard 445 

Humphrey  v.  Whitten 623 

Hurst    V.    Cook 200 

Independent  Order  of  Mutual  Aid 
V.   Paine • 302 

Inhabitants  of  West  Roxbury  v. 
Minot    501 

Jackson  v.  Castle 114 

Jackson   v.   Pesked 92 

Jacksonville       Electric      Co.      v. 

Batchis     410 

James   v.    Caldwell 6 

James  &  Mitchell  v.  Adams 293 

Jericho   v.    Vnderhill 630 

•Toliet   Steel   Co.    v.    Shields 467 

Jones  V.   Stevens 131 

Jordan  v.  Wyatt 1 

Judkins  v.  Union  Mut.   Fire  Ins. 

Co 399 

Kelly  V.  Strouse    542 

Kenyon  v.   Cameron 1 32 

Kern  v.   Zeigler o'Xj 

Kcyes  V.  Waters 557 

King  V.  Wilmington  &  N.  C.  E.  R. 

Co Ill 

Kitchen  v.  Campbell 209 

Knapp  &  Worden  v.  Winchester. .  192 
Knight  V.  New  England  Worsted 

Co 269 

Knight    V.    Trim 591 

Lamotte    v.    Wisner 236 

Lamphear   v.    Buckingham 521 

Landt  v.  McCullough 390 

Langley  v.  Metropolitan  Life  Ins. 
Co 534 


TABLE   OF   CASES 


XVI I 


Page 

Lansing  v.  McKillip 298 

Leeds  v.  Burrows 258 

Lewis  Lumber  Co.  v.  Camody 594 

Libby,  McNeill  &  Libby  v.  Scher- 

man    122 

Lord  &  McCraclcen  v.  Henderson  254 

McCrary    v.    Broxcn 326 

McGanalian  v.   East  St.  Louis  & 

C.    R.    Co lis 

McGavock  v.   Puryear 387 

McOinnity    v.    Lasuerenne 374 

McLeod  V.  Powe  &  Smith 330 

McManus  v.   Cassidy 284 

McNulta  V.  Lockridge 179 

Maher  v.  Ashmead 555 

Maenner  v.  Carroll 109 

Maggs  V.   Ames 34G 

Mardis'  Adni'rs  v.  Shackleford. . .  43f> 

Marriot  v.  Lister 279 

Marsh    v.    Bultccl 427 

Martin  v.  Kesterton 459 

Melirhof     Brothers'     Brick     Mfg. 

Co.  V.  Delaware,  L.  &  W.  R.  Co.  483 

Miller  v.  Manice 206 

Miller  v.   Wilbur 248 

:Milligan    v.    Thorn 149 

MiLMAN  V.  DOLWELL 44 

Moore,  Adm'r,  v.  Leseur 529 

Morris    Canal   &   Banking  Co.    v. 

Van    Voorst 380 

Morton   v.    Sweetser 607 

Mount  V.  Hunter 80 

Nachtrieb  v.   Stoner 20 

Xeubeck  v.  Lynch 570 

Newall  V.  Hussey 575 

Nicholson  v.   Croft 419 

Nohle    V.    Seqal 497 

North    V.    Kizer 428 

Nugent  V.  Teachout 273 

Olsen  V.  LTpsahl 42 

Ordinary  r.  Bracev 529 

O'Reilly  v.  New  York  &  N.  E.  R. 

Co 105 

Orton  v.  Butler 79 

Osgood  V.   Green 214 

Otis  V.  Hitchcock 5."i4 

Ott  V.  Schroeppel 388 

Parker   v.    Macoraber 318 

Parker  v.   Palmer .304 

Parker  &  Son  v.  Clemon 240 

Paul    V.    Luttrell 242 

Peacock  v.  Beix .597 

Peake   v.    Oldham l.'^O 

Peltier  v.   Sewall 202 

Pemigewasset  Bank  v.  Brackett. .  478 

Penn   v.    Flack 280 

Penny  v.  Porter 290 

Penobscot  R.    Co.    v.    Mayo 320 


Page 

People  ex  rel.  Dixon  v.  Shaw. . . .  438 

People's  Nat.   Bank   v.   Nickerson  495 

Perdu  V.    Connerly 160 

Pforzheimer  v.  Selkirk 102 

Philips  &  Walker  v.  Harriss 221 

Phillips  V.  Crosby 441 

Pierce  v.  Crafts 281 

Pierson  v.   Spaulding 2.57 

Pippet   V.   Hearn 158 

Pitts  Sons'  Mfg.  Co.  v.  Commercial 

Nat.    Bank 616 

Plowman    v.    Foster 176 

Plunkett  V.  Detroit  Electric  R.  Co.  5.52 

Posnett    V.    Marble .547 

Potts  V.  Point  Pleasant  Land  Co.  453 

Powell    V.    Smith 217 

Powell  V.  Williams 329 

Presgrave    v.     Saunders 211 

Priest    V.    Dods\\^orth 447 

Prince    v.  Commercial  Bank 000 

Probate  Court  v.  Van  Duzer 558 

Prunty  v.   Mitchell 610 

Quincy  v.  Hall 238 

Rawson    v.    Taylor 63 

Raymond    v.    Sturges 497 

Bead    v.    Chelmsford 547 

Reynolds   v.    Hurst 377 

Rice    v.    Shute 611 

Richardson  &  Skilton  v.  Reed 219 

Rickert  v.   Snyder 509 

Rocker    v.    Perkins 30 

Roella  V.  Follow 142 

Rosenbury  v.  Angell 501 

Royce  v.    Oakes 78,  199 

Rudder  v.  Price 30,0 

Ryan  v.   May 625 

Sadler  v.  Robins 541 

Sampson  v.  Hc?iry 478 

Savignac  v.  Roome 551 

Scott    v.    Shepherd 2,    7 

Seal  V.  Virginia  Portland  Cement 

Co 4^6 

Service  v.  Heermance 478 

Seymour  v.  Maddox 432 

Sharrod  V.  Ry 4 

>S7/  a  10  V.  Hill 50 

Sheldon  v.  Hopkins 383 

Sheppard  v.  Pealiody  Ins.  Co 517 

Shotwell's  Ex'rs  v.  Dennis 537 

Silver  v.  Rhodes .534 

Simeoke  v.  Frederick 243 

Slade's  Case 301,  302 

Smith  V.  Lorillard 57 

Smith  V.  Webster 292 

Smith  V.  Whitaker 371 

Snyder  v.  Wheeling  Electrical  Co.  115 

Southern  Express  Co.  v.  McVeigh  100 

Spann  v.  Baltzell 309 

Standiford  v.  Goudy 4:;o 


XVlll 


TABLE   OP  CASES 


Page 
State  V.  Commissioners  of  Piitnam 

County 528 

Stopliens  V.  Uuderwoocl 500 

Htcwiirt  Mfg.  Co.  V.  Iron  Clad  Mfg. 

Co -. 312 

Swift  V.  Moseley 189 

Talhott  V.  Southern  Oil  Co 557 

Tatein  &  Poulter  v.  Perient 444 

Taylor  v.  Horde 72 

Terrell  v.  McDaniel 409 

Thomas  v.  Winters G15 

Thompson  v.  French 350 

TiLTON  V.  Beeciier 492 

Tobias  v.  Harland 567 

Town  of  Cameron  v.  Hicks 424 

Toton    of    Royalton    v.    Royalton, 

etc.,  Co 429 

Union  Pac.  R.  Co.  v.  Wyleb 589 

United  States  v.  Colt 371 

Van  Santwood  v.  Sanford 405 

Van  Valkenburgh  v.  Rouk 394 

Varley    v.    Manton 307 

Victors  V.  Davies 324 

Waid  V.  Dixon 33:5 

Waistel  v.  Holman 143 

Walcott  V.  Canfield 613 

Walker    v.    Lansing    &    Suburban 

Traction    Co 595 


Page 

Walker  v.  Michigan  State  Bank. .  465 

Walker  v.  Witter 365 

Wall  V.  Chesapeake  &  O.  R.  Co 469 

Walpole  V.  Cooper r>.']6 

Walpole  V.  S'mith 212 

Ward  Y.  Athens  Min.  Co 3:18 

Ward  v.'  Bartholomew 56") 

Warren  v.  Dwyer 195 

Watson  V.  Jones 170 

Weall  v.  King 614 

Webster  v.  Plolmes 155 

West  V.  Emery 166 

Westeott   V.   Central   Vermont   R. 

Co 105 

Wetmore  v.  Robinson 11 

W.  F.  Parker  &  Son  v.  Clemon...  249 

WnELPDALE's  Case 392 

Whitaker  v.  Freeman 449 

Whitecraft  v.  Vanderver 384 

Whiting  V.    Smith 134 

Wickliffe  v.   Hill 298 

V.ilson  V.  Barker  &  Mitchell 9 

Wilsmi    17.    Nevcrs 620 

Wincher   v.    Shrewsbury 23 

Wi/nsloiv   V.    Merrill 592 

Woodruff    v.    Dickie 569 

Teatman  v.  Cullen 455 

Yong    Den    v.    Hitchcock 328 

Young    V.    Rummell. .' 341 

Zell   V.   Arnold 75 


<l 


CASES   ON   COMMON   LAW 
PLEADING 


PART  I 

PLEADINGS  IN  TORT  ACTIONS 


CHAPTER  I 
TRESPASS 


SECTION  1.— SCOPE  OF  THE  ACTION 


JORDAN  V.  WYATT. 

(Court  of  Appeals  of  Virginia,  1847.     4  Grat.  151,  47  Am.  Dec.  720.) 

This  was  an  action  of  trespass  vi  et  armis,  brought  by  Wyatt 
against  Jordan,  in  the  Circuit  Court  of  Nansemond.^ 

Baldwin,  J.  The  instruction  moved  for  by  the  defendant  in  the 
action  must  be  taken  as  conceding  that  the  injury  in  question  was 
occasioned  by  his  negligence.  He  asked  the  Court  to  instruct  the 
jury,  that  "if  they  should  believe  from  the  evidence,  that  the  plain- 
tiff's wood  was  cut  off  the  defendant's  land  with  his  consent,  and  was 
lying  thereon,  and  that  the  defendant,  with  a  view  of  clearing  another 
part  of  the  land,  set  fire  to  the  rubbish  on  the  last  mentioned  part 
of  his  land,  and  not  with  the  intention  of  burning  the  plaintiff's  wood, 
and  the  fire  escaped  from  him,  and  passed  on  to  the  part  of  the  land 
where  the  plaintiff's  wood  was  lying,  and  consumed  it,  that  this  action 
will  not  lie,  and  the  jury  must  find  for  the  defendant."  It  will  be 
seen  that  the  proposed  instruction  did  not  assert  that  the  fire  was 
kindled  with  due  precaution  and  circumspection,  or  that  it  escaped 
from  the  defendant  without  his  default,  or  that  he  made  proper  ef- 

1  Statement  of  facts  abridged. 
Whit.CL.Pl.— 1 


2  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

forts  to  arrest  it.  It  cannot  be  doubted,  therefore,  in  the  case  sup- 
posed, that  the  plaintiff  is  entitled  to  redress,  and  the  question  we 
have  to  decide  is,  whether  he  has  sought  it  in  an  improper  form,  by 
an  action  of  trespass,  instead  of  an  action  of  trespass  on  the  case. 

The  distinction  as  to  the  proper  form  of  action,  where  the  injury 
to  the  plaintiff  is  occasioned  by  an  act  of  the  defendant,  is  thus  stated 
by  an  approved  writer:  "If  the  injury  be  forcible,  and  occasioned 
immediately  by  the  act  of  the  defendant,  trespass  vi  et  armis  is  the 
proper  remedy;  but  if  the  injury  be  not  in  legal  contemplation  for- 
cible, or  not  direct  and  immediate  on  the  act  done,  but  only  conse- 
quential, then  the  remedy  is  by  action  on  the  case."  1  Chit.  PI.  122. 
The  force  adverted  to  in  this  passage,  it  will  be  seen,  is  not  merely 
actual  force  but  also  force  implied  by  law;  and  as  the  law  always 
implies  force  where  the  injury  is  immediate  to  the  person  or  property 
of  another,  it  is  obvious  that  the  substantial  distinction  is  between 
direct  and  immediate  injuries  on  tho  one  hand,  and  those  mediate 
or  consequential  on  the  other.  And  so  it  is  regarded  by  Blackstone 
in  his  Commentaries,  vol.  3,  p.  123,  where  he  says:  "It  is  a  settled 
distinction,  that  where  an  act  is  done  which  is  in  itself  an  immediate 
injury  to  another's  person  or  property,  there  the  remedy  is  usually 
by  an  action  of  trespass  vi  et  armis ;  but  where  there  is  no  act  done, 
but  only  a  culpable  omission ;  or  where  the  act  is  ndt  immediately 
injurious,  but  only  by  consequence  and  collaterally;  there  no  action 
of  trespass  vi  et  armis  will  lie,  but  an  action  on  the  special  case,  for 
the  damages  consequent  on  such  omission  or  act."  And  again,  in  the 
same  vol.  p.  208,  9,  the  author  says :  "Whenever  the  act  itself  is 
directly  and  immediately  injurious  to  the  person  or  property  of  an- 
other, and  therefore  necessarily  accompanied  by  some  force,  an  ac- 
tion of  trespass  vi  et  armis  will  lie;  but  if  the  injury  is  only  conse- 
quential a  special  action  of  trespass  on  the  case  may  be  brought." 
And  to  the  same  effect.  Lord  Ch.  J.  De  Gray  said  in  the  noted  case 
of  Scott  V.  Shepherd,  3  Wils.  403 :  "Whether  the  injury  occasioned 
by  the  act  be  immediate  and  direct  or  not  is  the  criterion;  and  not 
whether  the  act  be  unlawful  or  not.  If  the  injury  be  immediate  and 
direct,  it  is  trespass  vi  et  armis,  if  consequential,  it  will  be  trespass 
on  the  case." 

The  distinction  thus  taken  is  perhaps  as  well  drawn  as  it  could 
be  in  a  brief  definition,  but  there  is  some  degree  of  vagueness  in 
the  terms  employed,  so  as  to  vary  the  sense  according  to  the  mode 
or  circumstance  of  the  act  in  reference  to  which  they  are  understood ; 
and  this  requires  some  precision  and  even  nicety  in  ascertaining  the 
proper  mode  of  circumstance.  The  terms  "immediate"  and  "conse- 
quential" should,  as  I  conceive,  be  understood,  not  in  reference  to 
the  time  which  the  act  occupies,  or  the  space  through  which  it  passes, 
or  the  place  from  which  it  is  begun,  or  the  intention  with  which  it 
is  done,  or  the  instrument  or  agent  employed,  or  the  lawfulness  or 
unlawfulness  of  the  act;    but  in  reference  to  the  progress  and  ter- 


Ch.  1)  TRESPASS  3 

mination  of  the  act,  to  its  being  done  on  the  one  hand,  and  its  having 
been  done  on  the  other.  If  the  injury  is  inflicted  by  the  act,  at  any 
moment  of  its  progress  from  the  commencement  to  the  termination 
thereof,  then  the  injury  is  direct  or  immediate;  but  if  it  arises  after 
the  act  has  been  completed,  though  occasioned  by  the  act,  then  it  is 
consequential  or  collateral,  or,  more  exactly,  a  collateral  consequence. 

There  is  no  better  illustration  of  the  distinction  than  the  familiar 
case,  commonly  put,  of  throwing  a  log  into  a  highway,  which  in  its 
flight  or  fall,  hits  or  strikes  a  person:  there  the  injury  is  immediate, 
and  the  remedy  may  be  trespass ;  but  if,  after  it  has  fallen  and  while 
lying  on  the  ground,  a  passenger  stumbles  over  it  and  is  hurt,  the 
injury  is  consequential,  and  the  remedy  must  be  case. 

So,  if  one  digs  a  ditch  or  trench,  which  diverts  a  stream  of  water 
from  his  neighbor's  land,  or  makes  a  dam  across  the  stream,  whicb 
obstructs  or  checks  its  current  and  throws  back  the  water  upon  the, 
complainant's  land,  there  is  an  immediate  injury,  from  the  diggin^f 
into  the  plaintiff's  ground,  or  the  throwing  up  of  the  earth  or  stoner. 
or  logs  upon  it,  to  be  redressed  by  the  action  of  trespass  vi  et  armis ; 
in  which  the  consequential  damages  from  the  diversion  or  reflu;c 
of  the  water  may  be  recovered  under  a  per  quod,  or  by  way  of  ag- 
gravation. But  if  the  work  be  not  done  upon  or  extended  into  the 
plaintiff's  land,  the  injury  is  consequential  merely,  and  can  be  re- 
dressed only  by  an  action  of  trespass  upon  the  case.  In  these  in- 
stances, and  all  others  that  can  be  put,  it  is  the  progress  of  the  act 
or  work  which  does  the  immediate  injury;  and  it  is  the  completion 
of  the  act  or  work  which  thereafter  gives  rise  to  the  consequential 
or  collateral  injury. 

Now,  in  the  case  before  us,  the  act  of  the  defendant  was  the  mak- 
ing of  a  fire,  which  consumed  his  own  stubble  and  the  plaintiff's 
wood:  the  injury  was  immediate  from  the  progress  of  the  flames, 
and  did  not  arise  thereafter,  when  they  had  run  their  course.  It  is 
immaterial  whether  the  stubble  or  wood  was  first  consumed,  or 
whether  the  torch  was  applied  to  the  wood  or  to  inflammable  matter 
touching  it,  or  near  it,  or  at  whatever  distance  from  it,  or  whether 
the  flames  expired  with  the  wood,  or  extended  beyond  it.  The  whole 
conflagration  was  one  continuous,  entire,  immediate  act,  embracing 
in  its  progress  the  plaintiff's  property,  completed  only  by  the  destruc- 
tion thereof,  and  followed,  as  between  these  parties,  by  no  collateral 
consequence  whatever.  It  was  therefore  a  trespass ;  and  any  mode 
or  circumstance  of  the  act  that  has  been,  or  can  be  relied  upon,  to 
shew  it  was  not,  will  be  found  upon  examination  to  be  utterly  irrel- 
evant. 

It  can  avail  the  defendant  nothing  that  the  act  was  done  upon  his 
own  land,  for  it  destroyed  the  plaintiff's  property,  which  was  there 
by  the  consent  and  contract  of  the  parties,  and  as  much  under  the 
protection  of  the  law  there  as  if  lying  on  the  adjacent  land  of  the 
plaintiff's.     Suppose  it  had  been,   and  the   fire  set  in   motion  by  the 


4.  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

defendant  on  his  own  land,  had  extended  into  the  plaintiff's,  and  there 
consumed  the  plaintiff's  goods,  would  not  the  act  have  been  a  tres- 
pass, as  substantially,  if  not  so  obviously,  as  if  the  defendant  had 
entered  upon  the  plaintiff's  land  and  there  applied  the  torch? 

A  fire  let  loose  by  a  party  on  his  own  land  op  elsewhere,  and  sweep- 
ing through  its  course,  cannot  be  divided  into  imaginary  parcels,  and 
some  of  them  treated  as  collateral  consequences  of  the  rest:  the 
whole  is  one  act,  as  much  so  as  the  throwing  or  rolling  of  a  stone, 
or  the  shooting  of  an  arrow,  or  the  firing  of  a  gun,  or  the  exploding 
of  a  mine.  He  who  gives  a  mischievous  impulse  to  matter  is  the 
actor,  by  whatever  instrument  or  agent  he  acts,  and  whether  he  uses 
muscular  strength  or  mechanical  force,  or  even  moral  power,  as  if 
he  commands  or  procures  another  to  do  the  act;  ^  or  whether  he  ex- 
cites or  inflames  into  action  some  dormant  quality  or  property  of 
a  substance,  natural  or  artificial,  animate  or  inanimate.  If  a  m'an 
wantonly  or  carelessly  strikes  the  horse  of  another,  and  the  animal 
being  thereby  stimulated  into  fright  or  rage,  throws  his  rider  or 
runs  over  a  stranger,  the  intermeddler  becomes  a  trespasser.  So,  if 
he  owns  an  animal  known  to  be  dangerous  and  turns  him  loose  where 
he  has  opportunities  of  doing  mischief,  and  he  does,  the  act  is  the 
owner's.  Mere  acquiescence  even,  is  sometimes  treated  by  law  as 
activity ;  as  if  the  owner  of  animals  mansuetas  naturse,  'as  cows  and 
sheep,  who  is  presumed  to  know  their  natural  disposition  to  rove, 
suffers  them  to  go  at  large,  and  they  intrude  upon  the  lands  of  his 
neighbors,  without  their  default,  he  thereby  becomes  a  trespasser  vi 
et  armis. 

It  is  no  ground  of  defence  to  this  action  that  the  defendant  was 
engaged  in  a  lawful  pursuit  ^  and  intended  no  harm,  and  that  his 
act  would  have  been  harmless  but  for  his  carelessness  or  negligence. 
He  was  not  the  less  a  trespasser;  and  in  truth  his  only  ground  of 
defence  in  this  or  any  form  of  action  would  have  been,  that  he  was 
in  no  wise  careless  or  negligent,  but  had  proceeded  with  due  caution 
and  circumspection,  and  that  the  injury  done  by  his  act  was  occasioned 
by  unavoidable  accident.  A  man  is  bound  so  to  conduct  himself  as 
to  avoid  doing  damage  to  the  person  or  property  of  another,  and  a 
slight  default  will  render  him  responsible:  as  when  he  is  uncocking 
a  gun  and  it  goes  off  and  accidentally  wounds  a  bystander,  whom 
he  did  not  see,  without  intending  it;  or  where  he  accidentally  drives 
a  carriage  against  that  of  another,  though  not  otherwise  blamable 
than  in  driving  on  the  wrong  side  of  the  road  on  a  dark  night,  or 

2  But  if,  though  the  servant  or  agent  is  acting  within  the  scope  of  his  au- 
thority, there  is  no  command  fi'om  the  master  or  principal  to  do  the  specific 
act  in  question,  then  trespass  does  not  lie.  Sharrod  v.  Railway,  4  Bxch.  580 
(1&49) ;  Chitty,  Pleading,  I,  IGth  Am.  Ed.,  *146 ;  28  Am.  &  Eng.  Ency.  Law, 
618. 

sVogel  V.  McAuliffe,  18  R.  I.  791,  793,  31  Atl.  1  (189.5),  semble.  Accord. 
St.  Louis  Co.  V.  Dalby,  19  111.  353.  375  (1857).  Contra.  For  other  citations 
accord,  see  28  Am.  &  Eng.  Ency.  557,  558. 


Ch.  1)  TRESPASS  5 

in  driving  a  horse  too  spirited,  or  in  pulling  the  wrong  rein,  or  using 
imperfect  harness.    Wakeman  v.  Robinson,  8  Eng.  C.  L.  R.  300. 

I  doubt  not  that  trespass  on  the  case  might  have  been  maintained 
for  the  grievance  in  question  ;*  but  it  by  no  means  follows  that  tres- 
pass is  not  also  a  proper  remedy.  Where  the  injury  is  immediate 
and  attributable  to  the  defendant's  negligence,  I  can  perceive  no  good 
reason  why  the  two  remedies  of  trespass  and  case  should  not  be  con- 
current, so  that  either  may  be  selected ;  the  action  of  trespass, 
founded  upon  the  defendant's  act,  against  which  his  negligence  can 
be  no  defence ;  or  the  action  on  the  case,  founded  upon  his  negligence 
in  doing  an  act  which  would  have  been  otherwise  lawful.  In  either 
form  of  action,  the  merits  of  the  case  would  be  the  same,  would  fall 
under  the  same  issue,  appear  from  the  same  evidence,  turn  upon  the 
same  responsibility,  and  receive  the  same  adjudication.  It  would  be 
difficult  to  maintain,  either  upon  reason  or  authority,  that  in  such  a 
case  a  greater  degree  of  negligence  would  be  required  by  the  action 
on  the  case  than  by  the  actiori  of  trespass.  Tuberville  v.  Stamp,  1 
Salk.  R.  13,  1  Com.  R.  33,  was  trespass  on  the  case,  founded  upon 
the  defendant's  making  a  fire  to  burn  his  stubble,  which  by  his  neg- 
ligence burnt  the  plaintiff's  clothes  in  his  ground  adjoining;  and  the 
Court  held  that  the  defendant  "made  it  (the  fire)  and  must  see  that 
it  did  no  harm,  and  must  answer  the  damage  if  it  did.  Every  man 
must  use  his  own  so  as  not  to  hurt  another :  but  if  a  sudden  storm 
had  risen  which  he  could  not  stop,  it  was  matter  of  evidence  and 
he  should  have  shewn  it."  And  the  principles  of  that  case  were 
expressly  approved  by  the  judges  in  Vaughan  v.  Menlove,  32  Eng. 
C.  L.  R.  208,  which  was  an  action  on  the  case  against  a  party  for 
so  negligently  constructing  a  hayrick  on  the  extremity  of  his  own 
land,  that  in  consequence  of  its  spontaneous  ignition,  his  neighbor's 
house  had  been  burnt  down;  and  in  which  it  was  held  that  it  had 
been  properly  left  to  the  jury  at  the  trial,  whether,  with  reference 
to  the  caution  which  would  have  been  observed  by  a  man  of  ordinary 
prudence,  the  defendant  had  not  been  guilty  of  gross  negligence.  In 
the  latter  case,  it  will  be  observed,  that  the  fire  was  not  made  by 
the  defendant,  but  sprung  from  the  negligence  with  which  he  made 
and  kept  his  rick;  and  therefore  it  was  not  the  case  of  a  negligent 
act,  but  of  a  negligent  omission. 


*  Ogle  V.  Barnes,  8  D.  &  E.  188  (1799) ;  Blin  v.  Campbell,  14  Johns.  (N.  Y.) 
432  (1817).  Accord.  Day  v.  Edwards,  5  D.  &  E.  648  (1794) ;  Waldron  v.  Hop- 
per, 1  N.  J.  Law,  339  (1795).  Contra.     See  further  citations  in  6  Cyc.  686. 

But  if  the  injury  be  both  intentional  and  direct,  case  will  not  lie.  Savig- 
nac  V.  Roome,  6  D.  &  E.  125  (1794);  Wood  v.  Railroad  Co.,  81  INIich.  3.58,  45 
N.  W.  980  (1890) ;  Wilson  v.  Smith,  10  Wend.  (N.  Y.)  324  (1&3.S)  ;  Kelly  v. 
Lett,  35  N.  C.  50  (1851);  Winslow  v.  Beal,  6  Call  (Va.)  44  (1806).  Accord. 
Vogel  V.  McAuliffe,  18  R.  I.  791,  31  Atl.  1  (1895:  thinking  the  injury  conse- 
quential). Contra. 

If  the  injury  was  intentional,  but  indirect,  case  is  proper.  Reynolds  v. 
Olerk,  8  Mod.  272  (1725). 


6  PLEADINGS  IN  TORT  ACTIONS  (Part   1 

The  forms  of  action  must,  it  is  true,  be  preserved,  but  it  is  much 
to  be  regretted  that  between  their  narrow  jurisdictions,  the  merits 
have  been  too  often  lost  by  a  confusion  or  mistake  of  boundaries. 
The  best  security  against  the  evil  is  to  lean,  so  far  as  authority  allows, 
to  a  concurrence  of  remedies,  when  the  due  administration  of  justice 
does  not  require  the  exclusion  of  one  by  another.  The  subject,  it 
seems  to  me,  as  regards  the  actions  of  trespass  and  case,  for  acts 
immediately  injurious,  is  placed  on  a  solid  and  judicious  footing  by 
the  cases  of  Williams  v.  Holland,  25  Eng.  C.  L.  R.  50,  and  Percival 
v.  Hickey,  18  Johns.  (N.  Y.)  257,  9  Am.  Dec.  210,  besides  others, 
recognizing  the  principle  that  where  an  act,  though  not  wilful,  is  the 
result  of  negligence  and  the  immediate  and  direct  cause  of  an  injury, 
trespass  vi  et  armis  will  lie ;  and  that  trespass  on  the  case  will  also 
lie,  though  the  act  be  violent  and  the  injury  immediate,  unless  wilful, 
if  occasioned  by  the  carelessness  or  negligence  of  the  defendant. 

I  think  the  judgment  of  the  Circuit  Court  ought  to  be  affirmed. 

The  other  judges  concurred  in  the  opinion  of  Baldwin,  J.  (Ab- 
sent, Brooke,  J.) 

Judgment  afftrmed." 


JAMES  V.  CALDWELL. 

(Supreiue  Court  of  Tennessee,  1834.     7  Yerg.  38.) 

Catron,  C.  J.,"  delivered  the  opinion  of  the  court. 

The  declaration  states,  that  James  with  force  and  arms  drove, 
chased,  and  set  his  dogs  upon  the  mare  of  Caldwell,  and  thereby 
caused  her  to  run  upon  and  against  a  stake  of  wood,  with  great  force 
and  violence,  so  that  said  stake  of  wood  penetrated  the  side  of  the 
mare,  of  which  she  afterwards  died. 

It  is  moved  to  arrest  the  judgment,  because  the  facts  set  forth  will 
not  support  an  action  of  trespass  vi  et  armis ;  and  it  is  insisted  for 
James,  that  the  injury  of  the  mare  running  on  the  stake  was  conse- 
quential, and  case  could  only  be  supported.  The  dogs  were  the  in- 
struments of  assault  as  much  as  a  stone  thrown  from  the  hand  would 
have  been.  The  violently  chasing  the  mare  was  in  itself  a  trespass, 
if  unlawful  for  the  defendant  to  do  so;  but  the  declaration  does 
not  state  this ;    yet  the  chasing  of  the  nag  forced  her  on  the  stake, 

6  Leame  v.  Bray,  3  East,  593  (1S03) ;  Covell  v.  Laming,  1  Camp.  497  (1808) ; 
Welch  V.  Durand,  36  Conn.  182,  4  Am.  Rep.  55  (1SG9) ;  Kendall  v.  Drake,  67 
N.  H.  592,  30  Atl.  524  (1891);  Judd  v.  Ballard.  66  Vt.  668,  30  Atl.  96  (1894). 
Accord.     Huggett  v.  INIontgomery,  5  B.  &  P.  446  (1807).  Contra. 

Trespass  lies  for  intentional  direct  injury.  Post  v.  Munn,  4  N.  J.  Law,  61, 
7  Am.  Dec.  570  (1818) ;    Garraty  v.  Duffy,  7  R.  I.  476  (1863). 

Trespass  does  not  lie  for  indirect  injuries.  Knight  v.  Dunbar,  S3  Me.  359, 
22  Atl.  216  (1891) ;  Garraty  v.  Duffy,  7  R.  I.  476  (1863).  See  further  cita- 
tions in  28  Am.  &  Eng.  Ency.  617. 

fi  Statement  of  facts  and  part  ol  the  opinion  omitted. 


Ch.  1)  TRESPASS  7 

and  the  injury  was  immediate,  and  proceeded  from  the  act  of  the 
defendant.  The  whole  was  but  one  act,  as  in  Scott  v.  Shepherd, 
for  throwing  a  squib,  3  Wils.  403.  In  that  case  one  was  cited  much 
in  point  to  the  present.  It  is  this:  "If  a  man  be  riding  on  the  way, 
and  another  man  striketh  his  horse,  by  which  the  rider  falleth  and 
is  hurt,  he  which  is  cast  off  his  horse  shall  have  trespass  against  the 
other.  The  stroke  given  is  to  the  horse,  and  not  to  the  rider,  but 
he  is  instantly  hurt  by  the  fall,  in  consequence  of  the  act  of  striking 
the  horse."  This  case  rests  on  the  ground  that  the  defendant,  in  com- 
mitting the  trespass,  used  an  agent,  the  horse  ridden ;  but  the  whole 
was  one  act,  proceeding  from  the  defendant,  and  immediate  in  point 
of  time.  We  therefore  think  this  first  ground  against  James,  the 
plaintiff  in  error.  *  *  * 
Judgment  affirmed.^ 


BARNUM  V.  BALTIMORE.  &  OHIO  R.  CO. 
(Supreme  Court  of  Appeals  of  West  Virginia,  1871.     5  W.  Va.  10.) 

This  was  an  action  of  trespass,  brought  to  February  rules,  1866, 
in  the  circuit  court  of  Wood  county. 

As  the  questions  determined  here  arose  upon  the  demurrer  to  the 
declaration,  it  is  here  inserted : 

The  Baltimore  and  Ohio  Railroad  Company  were  summoned  in 
said  circuit  court  to  February  rules,  1866,  to  answer  the  said  Allen 
S.  Barnum  of  a  plea  of  trespass. 

And  therefore,  the  said  plaintiff  complains  that  on  the  sixth  day  of 
January,  1866,  in  a  certain  car  belonging  to  said  defendants  (which 
are  a  body  corporate  created  by  the  Legislature  of  the  State  of  Mary- 
land, but  owning  a  railroad  and  property  in  the  State  of  West  Vir- 
ginia), to  wit,  in  a  certain  car  attached  to  the  mail  train  running  on 
said  day,  between  certain  places,  among  others  between  the  town  of 
Grafton  and  the  city  of  Parkersburg,  both  in  the  State  of  West  Vir- 
ginia, the  said  defendants  then  and  there,  by  their  servant  or  agent, 
to  wit,  by  the  conductor  of  said  mail  train,  acting  under  and  by  rea- 
son of  the  orders,  directions,  and  commands  of  the  said  defendants, 
forcibly  and  wrongfully  ejected,  expelled,  and  put  out  the  said  plain- 
tiff from  the  said  car,  and  from  the  use,  occupation  and  enjoyment  of 
the  same,  at  a  certain  station  on  the  route  of  the  said  Baltimore  and 
Ohio  Railroad,  to  wit,  at  the  station  known  as  Eaton's  Station,  in  the 
county  of  Wood  and  State  of  West  Virginia,  by  reason  whereof 
the  plaintiff  was  detained  and  obliged  to  remain  at  said  station  for 
a  great  space  of  time,  to  wit,  for  the  space  of  about  twelve  hours, 
and  did  suffer  greatly  from  cold,  hunger,  anxiety  and  fatigue,  and 

7  Wood  V.  La  Rue,  9  Mich.  158  (ISGl)  semble;  Waterman  v.  Hall.  17  Vt 
128,  42  Am.  Dec.  484  (1844)  semble.  Accord. 


8  PLEADINGS  IN   TORT  ACTIONS  (Part    1 

thereby  became  and  was  sick,  sore,  lame,  and  disordered,  and  so  re- 
mained and  continued  thence,  hitherto,  during  all  of  which  time,  he, 
the  said  Allen  S.  Barnum,  thereby  suffered  and  underwent  great  pain 
and  anxiety,  and  was  hindered  and  prevented  from  transacting  and 
performing  his  necessary  affairs  and  business,  by  him  during  that 
time  to  be  transacted  and  performed ;  and  also,  thereby,  the  said  Al- 
len S.  Barnum  was  forced  and  obliged  to,  and  did  necessarily  pay, 
lay  out,  and  expend  a  large  sum  of  money,  to  wit,  the  sum  of  two 
hundred  dollars,  in  and  about  endeavoring  to  be  cured  of  the  sick- 
ness, soreness,  lameness,  and  disorder  aforesaid.  And  other  wrongs 
the  said  defendants  then  and  there  did  against  the  peace  of  the  State 
of  West  Virginia,  and  to  the  damage  of  the  said  Allen  S.  Barnum 
of  ten  thousand  dollars ;   and  therefore  said  plaintiff  brings  this  suit." 

The  court  below  sustained  the  demurrer,  and  the  plaintiff  appealed. 

Berkshire^,  P.^  The  only  questions  involved  in  this  case  arise  on 
the  demurrer  to  the  declaration.  The  action  is  trespass  vi  et  armis 
for  the  recovery  of  the  secondary  or  consequential  damages,  alleged 
to  have  been  sustained  by  the  plaintiff,  by  reason  of  his  having  been 
forcibly  ejected  from  a  certain  car  belonging  to  the  defendant,  by 
its  agent  acting  under  its  advice  and  order,  said  agent  being  then 
and  there  the  conductor  of  the  train  and  car  from  which,  the  plaintiff 
was  so  ejected  and  expelled.  It  was  insisted  by  the  counsel  for  the 
appellee,  that  the  proper  remedy  for  the  grievance  complained  of, 
was  an  action  of  trespass  on  the  case,  and  that  trespass  vi  et  armis 
would  not  lie  upon  the  case  made  by  the  declaration.  By  section  7 
of  chapter  148  of  the  code  of  1860,  p.  635,  it  is  provided  that  "in 
any  case  in  which  an  action  of  trespass  will  lie,  an  action  of  trespass 
on  the  case  may  also  be  maintained."  °  But  the  converse  is  not  pro- 
vided, and  the  action  of  trespass,  therefore,  as  to  the  cases  in  which 
it  will  lie,  remains  as  at  common  law.  And  it  is  clear  that  at  the  com- 
mon law,  such  action  could  be  maintained  only  when  the  injury  com- 
plained of  was  the  direct  and  immediate  result  of  the  act  of  the  de- 
fendant complained  of.  But  it  never  lay  for  secondary  and  remote 
damages,  the  remedy  in  such  cases  (before  our  statute),  being  an  action 
of  trespass  on  the  case,  I  am  aware  of  no  civil  remedy  at  common 
law,  for  a  direct  and  wilful  trespass  and  injury  done  with  force  by  the 
defendant  to  the  person  of  another,  except  an  action  of  trespass 
for  an  assault  and  battery.  An  action  of  trespass  on  the  case  will 
now  lie  under  our  statute,  and  such  action  .would  also  embrace  the 
consequential  as  well  as  the  immediate  damages  resulting  from  the 

8  Part  of  the  opinion  omitted. 

9  In  several  common-law  states  statutes  have  been  passed  lessening  or 
abolishing  the  distinctions  between  trespass  and  case.  Delaware,  Rev.  St. 
1893,  c.  lOG,  §  H;  Illinois,  Kurd's  Rev.  St.  1909,  c.  110.  §  36;  Maine,  Rev.  St. 
1903,  c.  84,  §  26;  Michigan.  Comp.  Laws  1897,  §  10,400:  Pennsylvania,  Pur- 
don's  Dig.  (13th  Ed.)  p.  3610;  Virginia,  Code  1904,  §  2901;  West  Virginia, 
Code  1906,  §  3491. 


Ch.  1)  TRESPASS  9 

act.  In  this  case,  however,  the  action  is  not  for  the  assault  and  bat- 
tery, or  for  an  immediate  injury  done  to  the  person  of  the  plaintiff; 
but  it  is  a  trespass  vi  et  armis  for  the  secondary  and  consequential 
damages  alleged  to  have  ultimately  ensued  from  the  original  trespass 
in  ejecting  the  plaintiff  from  the  defendant's  car.  Authorities  were 
cited  to  show  that  an  action  for  an  assault  and  battery  committed 
by  its  agents  would  lie  against  a  corporation.  The  authorities  as  to 
this  question  are  conflicting  somewhat,  and  it  is  unnecessary  to  de- 
cide it,  as  no  such  action  in  this  instance  has  been  instituted.  The 
declaration  shows  a  case,  therefore,  in  which  trespass  at  common 
law  would  not  lie,  and  for  this  reason  the  demurrer  was  properly  sus- 
tained.    *     *     * 

The  remaining  members  of  the  court  concurred. 

Judgment  affirmed.^** 


WILSON  V.  BARKER  and  MITCHELL. 
(Court  of  King's  Bench,  1833.    4  Barn.  &  Adol.  614.) 

Trespass  for  assaulting  the  plaintiff,  and  taking  a  gun  from  him. 
At  the  trial  before  Alderson,  J.,  at  the  last  Spring  assizes  at  York, 
the  following  facts  were  proved :  The  plaintiff  was  shooting  on 
Meltham  Moors  in  the  West  Riding  of  Yorkshire,  when  the  defend- 
ant, Mitchell,  seized  him  and  took  away  his  gun.  The  taking  was 
wrongful.  Mitchell  was  the  servant  of  a  Mr.  Peace,  to  whom  the 
game  on  these  moors  was  given  by  certain  parties,  entitled  as  holders 
of  allotments  under  an  inclosure  act.  The  other  defendant,  Barker, 
was  employed  by  Mr.  Peace  in  protecting  the  game.  Mitchell  took 
the  gun  to  Barker,  who,  on  being  subsequently  asked  for  it  by  the 
plaintiff,  refused  to  give  it  up.  An  endeavour  was  made,  but  without 
success,  to  shew  that  Barker  admitted  having  authorized  Mitchell  to 
seize  it.  Alderson,  J.,  was  of  opinion,  that  this  evidence  did  not  sup- 
port an  action  of  trespass  against  Barker,  and  that,  to  reach  both 
parties,  the  form  of  action  should  have  been  trover.  A  verdict  was 
therefore  taken,  under  the  learned  Judge's  direction,  for  Barker,  and 
against  Mitchell  with  40s.   damages. 

Alexander  now  moved  for  a  rule  to  shew  cause  why  a  new  trial 
should  not  be  had,  on  the  ground  of  misdirection.  Assuming  that 
Mitchell  did  not  act  as  Barker's  servant  in  seizing  the  gun,  yet  Bar- 
ker ratified  the  act  by  his  subsequent  conduct,  and  thereby  made 
himself  liable  as  a  trespasser.  In  Badkin  v.  Powell  (Cowp.  478),  Lord 
Mansfield  says,  that  a  pound-keeper  is  not  liable  in  trespass  for  mere- 

10  In  trespass  consequential  damages  may  be  recovered  with  direct  dam- 
ages. Taylor  v.  Rainbow,  2  Hen.  &  M.  (Va.)  423,  441  (1808).  A  party  may 
waive  the  trespass  and  sue  in  case  for  the  consequential  damages  alone. 
Carleton  v.  Gate,  5G  N.  H.  130  (1875 1 :  Furman  v.  Applogate,  23  N.  J.  Law,  28 
(1850).    For  other  cases  see  6  Cyc.  685. 


10  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

\y  taking  in  cattle  brought  to  the  pound  by  other  persons,  who  act 
at  their  own  peril  if  the  taking  has  been  wrongful :  but  "if  he  goes 
one  jot  beyond  his  duty  and  assents  to  the  trespass,  that  may  be  a 
different  case."  In  Aaron  v.  Alexander  (3  Camp.  35),  where  a  wrong 
person  was  apprehended  under  a  warrant  and  carried  to  the  watch- 
house,  the  watch-house  keeper,  who  received  and  detained  him,  was 
held  liable  in  trespass,  though  he  had  no  means  of  ascertaining  the 
identity  of  the  party.  (Littledale,  J.  There  the  detention  was  a 
fresh  trespass.)  In  Hull  v.  Pickersgill  and  Others  (1  B.  &  B.  282), 
the  defendants  (in  trespass)  were  creditors  who  had  seized  the  goods 
of  an  uncertified  bankrupt  for  debts  incurred  after  the  bankruptcy; 
but  it  appeared  that  the  assignees  had  afterwards  surrendered  to 
the  defendants  all  their  interest  in  these  goods  under  the  commis- 
sion, and  this  was  held  to  be  a  ratification  of  the  seizure  as  made  to 
the  use  of  the  assignees.  (Parke,  J.  Lord  Coke,  in  4  Inst.  317, 
states,  as  a  diiTerence  between  the  forest  law  and  the  common  law, 
that,  by  the  former,  whosoever  receives  within  the  forest  any  male- 
factor in  hunting  or  killing  the  king's  deer,  knowing  him  to  be  such 
malefactor,  or  any  flesh  of  the  king's  venison,  knowing  it  to  be  the 
king's,  is  a  principal  trespasser;  whereas  by  the  common  law,  "he 
that  receiveth  a  trespasser  and  agreeth  to  a  trespass  after  it  be  done 
is  no  trespasser,  unless  the  trespass  was  done  to  his  use,  or  for  his 
benefit,  and  then  his  agreement  subsequent  amounteth  to  a  command- 
ment, for  in  that  case  omnis  ratihabitio  retrotrahitur  et  mandate  sequi- 
paratur;  but,  by  the  law  of  the  forest,  such  a  receiver  is  a  principal 
trespasser,  though  the  trespass  was  not  done  to  his  use."  Unless 
you  could  prove  here  that  the  seizure  of  the  gun  was  to  Barker's  use, 
he  cannot  be  made  liable  in  trespass.) 

Per  Curiam.  (Littledale,  Parke,  and  Patteson,  JJ.  Denman, 
C.  J.,  had  left  the  court.)  The  direction  was  right;  there  must  be  no 
rule. 

Rule  refused.^* 

iiBadkin  v.  Powell,  2  Cowper,  476  (1776);  Prince  v.  Puckett,  12  Ala.  832 
(1S4S) ;  Gloss  v.  Black,  91  Pa.  418  (1879).  Accord.  For  views  as  to  the  reason 
for  this  rule  see  3  H.  L.  Rev.  29,  and  Pollock  &  Maitland,  Hist,  of  Ens-  Law 
(2d  Ed.)  I,  167,  168.     For  further  citations,  see  28.  Am.  &  Eng.  Ency.  588.  . 

But  one  who  takes  by  trespass  from  a  trespasser  is  liable.  Bradley  v.  Da- 
vis, 14  Me.  44,  47,  30  Am.  Dec.  729  (1836)  semble;  Cox  v.  Hall,  18  Vt.  191 
(1846). 

A  bailee  cannot  be  sued  in  trespass  for  wrongful  acts  affecting  the  property 
done  after  the  termination  of  the  bailment.  2  Williams'  Saunders,  47  aa-cc ; 
Bradley  v.  Davis,  14  Me.  4A.  30  Am.  Dec.  729  (1836) ;  Nash  v.  Mosher,  19 
Wend.  (N.  Y.)  431  (1838).  Accord.  Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137, 
19  Am.  Dec.  561  (1828).  Contra. 


Ch.  1)  TRESPASS  11 

WETMORE  V.  ROBINSON. 

(Supreme  Court  of  Errors  of  Connecticut,  1818.     2  Conn.  529.) 

This  was  an  action  of  trespass  vi  et  armis,  alleging,  that  the  plain- 
tiff (Robinson)  was  the  lawful  owner  and  possessor  of  a  farm  of  land 
situated  in  Lebanon,  abutting  about  one  hundred  rods  on  the  main 
town-street,  and  containing  about  sixty  acres ;  which  was,  for  many 
years,  possessed  by  his  father  and  brother,  now  deceased ;  and  that 
in  front  of  said  farm  of  land,  and  nearer  to  the  plaintiff's  land  than 
to  any  other  person's,  was  situated  a  small  natural  pond  of  water ; 
that  for  a  time  whereof  the  memory  of  man  runneth  not  to  the  con- 
trary, the  owners  of  said  farm  have  enjoyed  the  privilege  of  said 
water  in  said  pond,  and  also,  when  the  same  was  dry,  have  used  and 
enjoyed  the  privilege  of  taking  manure  out  of  said  pond,  which  was 
well  known  to  the  defendant;  but  that  the  defendant,  intending  to 
injure  the  plaintiff,  did,  at  said  Lebanon,  on  the  20th  day  of  Au- 
gust, 1816,  and  at  divers  other  times  since,  maliciously,  with  force 
and  arms,  injure  the  plaintiff  in  the  uninterrupted  enjoyment  of  the 
use  and  privilege  of  the  water  and  manure  of  said  pond,  by  throwing 
stones  into  said  pond,  and  by  endeavouring  to  cause  said  pond  to 
be  drained,  and  to  prevent  the  accumulation  of  manure  therein, — 
all  with  a  set  design  to  injure  the  plaintiff  in  his  natural  right  to  the 
water  and  manure  of  said  pond,  a  necessary  and  valuable  appurtenant 
to  the  usual  enjoyment  of  said  farm;  which  doings  of  the  defendant 
were  against  the  peace,  and  contrary  to  the  plaintiff's  mind  and  will. 

The  defendant  pleaded  not  guilty,  on  which  issue  was  joined;  and 
the  plaintiff  obtained  a  verdict,  with  10  dollars  damages. 

The  defendant  then  brought  the  present  writ  of  error,  assigning 
the  insufficiency  of  the  declaration. 

Swift,  Ch.  J.  The  question  in  this  case,  is,  whether  the  declara- 
tion is  sufficient. 

It  is  contended  by  the  plaintiff,  that  this  is  an  action  for  an  injury 
to  an  incorporeal  right,  to  which  he  was  entitled,  by  prescription.  But 
there  is  no  averment,  that  the  plaintiff  was  possessed  of  such  right. 
He  only  alleges  a  possession  of  a  certain  farm,  in  front  of  which 
there  was  a  certain  pond ;  and  that,  from  time  immemorial,  the  owners 
of  the  farm  had  enjoyed  certain  privileges  of  the  water  in  the  pond ; 
not  that  the  plaintiff  was  possessed  of  such  privilege,  or  that  it  was 
ever  appurtenant  to  the  farm.  If  the  plaintiff,  however,  had  stated 
an  incorporeal  right  by  prescription,  he  should  have  brought  an  ac- 
tion of  trespass  on  the  case,  for  the  disturbance;  for  trespass  vi  et 
armis  will  not  lie.  To  maintain  this  action,  then,  it  is  necessary,  that 
the  plaintiff  should  have  alleged,  that  he  was  in  possession  of  the  place 
where  the  injury  is  charged  to  have  been  committed.  The  plaintiff 
insists,  that  though  the  place  is  not  set  forth  expressly,  yet  he  has  al- 
leged, that  he  was  in  possession  of  a  certain  farm,  bounded  on  the 


12  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

highway,  in  front  of  which,  and  nearer  to  his  land  than  any  other 
person's,  is  a  certain  pond,  where  the  injury  complained  of  was  done; 
that  as  he  is  entitled  to  the  highway,  (excepting  the  public  easement) 
in  virtue  of  being  the  adjoining  proprietor  to  it,  this  is  equivalent 
to  an  allegation  that  he  was  in  possession  of  the  locus  in  quo.  But 
he  might  have  been  in  possession  of  his  farm,  and  another  might 
have  been  in  possession  of  the  highway ;  so  that  this  does  not  amount 
to  an  allegation,  that  he  was  in  possession  of  the  place  where  the 
injury  was  done.  Of  course,  the  plaintiff  is  not  entitled  to  recover 
in  this  action. 

HosMER,  J.  The  action  brought  by  the  plaintiff  to  redress  the  injury 
complained  of,  is  trespass  vi  et  armis.  The  defendant  was  summoned 
to  answer  "in  a  plea  of  trespass" ;  and  the  casting  the  stones  com- 
plained of  into  the  pond,  is  laid  to  have  been  done  "with  force  and 
arms,"  and  "against  the  peace."  Whether  the  action  ought  to  have 
been  trespass  vi  et  armis,  or  trespass  on  the  case,  is  a  question  in- 
volving the  merits  of  the  plaintiff's  declaration.  But,  whether  it  is 
of  one  or  the  other  species,  depends  not  on  the  facts  stated,  but  on 
the  manner  in  which  the  suit  is  instituted. 

It  is  clear  beyond  a  question  that  the  facts  alleged  in  the  plain- 
tiff's declaration,  do  not  sustain  the  action  of  trespass..  The  gist 
of  this  action  is  the  immediate  injury  to  the  plaintiff's  possession. 
1  Chitty's  Plead.  175.  The  intent  with  which  the  act  was  done,  or 
whether  the  act  was  legal  or  illegal,  forms  no  part  of  the  criterion. 
Now,  the  plaintiff  complains  of  no  injury  to  his  possession.  He  mere- 
ly states  an  obstruction,  by  casting  stones  into  a  pond,  which  had 
been  immemorially  enjoyed  by  himself  and  those  under  whom  he 
claims,  for  the  procurement  of  water  and  manure,  as  he  had  been 
accustomed.  The  pond  does  not  appear  to  be  on  his  farm,  or  in  his 
actual  or  constructive  possession.  If  any  suit  is  sustainable,  it  is 
trespass  on  the  case.  But,  on  this  subject  I  express  no  opinion,  as 
the  point  is  not  before  the  court. 

The  judgment  complained  of,  in  my  judgment,  is  manifestly  er- 
roneous. 

The  other  judges  were  of  the  same  opinion. 

Judgment  reversed.^^ 

12  Matthews  v.  Treat,  75  Me.  594,  600  (18S4)  semble;  Wright  v.  Freeman, 
5  Har.  &  J.  (Md.)  467,  475  (1823)  semble ;  Osborne  v.  Butcher,  26  N.  J.  Law, 
308  (1857) ;    Lambert  v.  Hoke,  14  Johns.  (N.  Y.)  383  (1817)  semble.  Accord. 

Case  is  the  proper  remedy.  Wright  v.  Freeman,  5  Har.  &  J.  (Md.)  467,  475 
(1823)  semble;  Gushing  v.  Adams,  18  Pick.  (Mass.)  110  (1836)  semble;  Os- 
borne V.  Butcher,  26  N.  J.  Law,  308  (1857)  semble;  Lansing  v.  Wiswall,  5 
Denio  (N.  Y.)  213,  216  (1848) ;  Greenwalt  v.  Horner,  6  Serg.  &  R.  (Pa.)  71,  76 
(1S20)  semble;  Perrin  v.  Granger.  33  Vt.  101  (1860).  Accord.  For  further 
citations,  see  6  Cyc.  690. 

But  the  rule  is  different  as  to  an  exclusive  right  of  profit.  Y.  B.  20  &  21 
Edw.  I,  206  (1293) ;  Clap  v.  Draper,  4  Mass.  266,  3  Am.  Dec.  215  (1808) ; 
Stultz  V.  Dickey,  5  Bin.  (Pa.)  28-3,  6  Am.  Dec.  411  (1812).  Accord.  Matthews 
V.  Treat,  75  Me.  594,  599  (IS&l).  Contra. 


Ch.  1)  TRESPASS  13 

DRAKE  V.  LADY  ENSLEY  COAL,  IRON  &  R.  CO. 

(Supreme  Court  of  Alabama,  1894.    102  Ala.  501,  14  South.  749,  24  L.  R.  A. 
64,  48  Am.  St.  Rep.  77.) 

Coleman,  J.^^  This  action  was  instituted  to  recover  damages  for 
an  alleged  injury  to  realty.  The  complaint  consists  of  several  counts, 
some  of  which  were  framed  in  trespass,  and  others  in  case.  The  im- 
portant questions  for  consideration,  and  the  decision  of  which  will 
determine  the  several  assignments  of  error,  are:  First,  whether  the 
facts  will  support  the  complaint,  in  either  of  its  aspects ;  and  if  so, 
second,  whether  the  proper  action  is  trespass  or  case;  and,  third,  if 
the  action  is  maintainable,  what  is  the  proper  measure  of  damages? 
The  trial  court  held  that  the  action  should  be  in  case,  that  the  statute 
of  limitations  for  one  year  applied.     *     *     * 

The  undisputed  facts  show  that  for  many  years  prior  and  up  to 
the  time  of  his  death,  which  occurred  in  the  year  1890,  plaintiff's  tes- 
tator had  owned  and  been  in  possession  of  the  lands  claimed  to  have 
been  damaged,  cultivating  them  as  a  farm,  and  since  his  death  the 
plaintiff,  as  executor,  had  been  in  possession  of  the  lands ;  that  through 
the  lands  there  flowed  a  creek  of  clear,  healthy  water,  useful  for, 
and  used  for,  watering  stock,  and  at  times  for  drinking  purposes; 
that  defendant  owned  a  tract  of  land  above  the  land  of  plaintiff,  on 
the  same  creek,  from  which,  for  five  or  six  years  previous  to  the 
bringing  of  the  suit,  defendant  had  been  engaged  in  mining  iron  ore, 
and  washing  its  ore  with  the  waters  of  the  creek ;  that  for  this  pur- 
pose the  water  was  pumped  into  large  reservoirs,  and,  after  utilizing 
the  water  in  washing  the  iron  ore,  it  was  allowed  to  escape  in  a  way 
so  as  to  return  to  its  natural  channel,  above  plaintiff's  land.  There 
was  evidence  also  tending  to  show  that,  when  the  water  reached 
plaintiff's  farm,  it  was  laden  with  red  clay,  refuse  ore,  and  debris, 
rendering  it  unfit  for  stock  and  drinking  purposes,  and  that  in  some 
places  a  thick  sediment  or  "slush"  was  deposited  upon  portions  of  the 
farm,  impairing  its  fertility,  and  in  some  places  it  was  so  deep  as 
to  destroy  its  usefulness  for  cultivation.     *     *     * 

We  are  of  opinion  the  trial  court  ruled  properly  in  holding  thai 
under  the  facts  of  the  case  the  plaintiff  could  recover  only  on  the 
counts  in  case.  The  boundary  line  between  where  trespass  ends  anrt 
case  begins  is  not  always  easily  determined.  Under  the  law  the  de- 
fendant had  the  right  to  divert  the  water  from  its  channel  and  utilize 
it  in  washing  the  ore.  His  duty  was  to  return  the  water  to  its  prop- 
er channel.  This  was  done.  The  tort  to  plaintiff  was  neither  in  the 
diversion  of  the  water  from  its  channel,  nor  that  defendant  used  it 
for  his  own  purposes,  but  that  the  use  to  which  it  was  applied  ren- 
dered it  impure,  filled  it  with  clay  and  objectionable  ore  and  debris, 

13  statement  of  facts  and  part  of  tlie  opinion  omitted- 


14  PLEADINGS  IN   TORT  ACTIONS  (Part    1 

and  in  this  condition  it  was  carried  by  the  flow  of  the  water  to  plain- 
tiff's farm.  The  damage  inflicted  was  neither  intentional  nor  direct 
nor  immediate,  but  was  consequential.  The  evidence  of  plaintiff  which 
tended  to  show  that  the  injury  was  the  result  of  negligence  in  failing 
to  provide  proper  basins  to  contain  the  water  after  use,  until  the  sedi- 
ment settled  and  the  water  became  pure,  if  actionable,  was  clearly  in 
case.  Polly  v.  McCall,  37  Ala.  21 ;  Pruitt  v.  Ellington,  59  Ala.  454 ; 
Bell  V.  Troy,  35  Ala.  184;  Roundtree  v.  Brantley,  34  Ala.  544,  73 
Am.  Dec.  470;  Williams  v.  Hay,  120  Pa.  485,  14  Atl.  379,  6  Am. 
St.  Rep.  719 ;  2  Wait,  Act.  &  Def.  110.  *  *  * 
Reversed  and  remanded.^* 


HOBBS  V.  RAY. 
(Supreme  Court  of  Rhode  Island.  1892.     18  R.  I.  84,  25  Atl.  604.) 

Trespass  on  the  case  by  Lemuel  R.  Hobbs  against  Frederick  A. 
Ray  for  false  imprisonment.  On  demurrer  to  the  declaration,  and  also 
on  demurrer  to  a  plea  in  abatement.  Demurrer  to  declaration  sustain- 
ed, and  plea  in  abatement  overruled. 

Per  Curiam.  We  think  the  defendant's  demurrer  to  the  plaintiff's 
declaration  should  be  sustained.  The  facts  set  out  in  the  writ  and 
declaration  show  a  case  for  malicious  prosecution,  and  not  for  false 
imprisonment ;  and  these  actions  are  quite  distinct  and  different  from 
each  other.  An  action  of  trespass  for  false  imprisonment  lies  for  an 
arrest,  or  some  other  similar  act  of  the  defendant,  "which,"  as  is  said, 
"upon  the  stating  of  it,  is  manifestly  illegal ;"  while  malicious  prosecu- 
tion, on  the  contrary,  lies  for  a  prosecution  which,  upon  the  stating 
of  it,  is  manifestly' legal.  Johnstone  v.  Sutton,  1  Term  R.  510,  544. 
The  declaration  in  the  case  at  bar  shows  that  the  arrest  complained 
of  was  made  under  lawful  process,  although  wrongfully  obtained. 
There  was,  therefore,  no  false  imprisonment,  the  imprisonment  being 
by  lawful  authority.  Nebenzahl  v.  Townsend,  61  How.  Prac.  (N.  Y.) 
353,  356.  Imprisonment  caused  by  a  malicious  prosecution  is  not 
false,  unless  without  legal  process  or  extrajudicial.  Murphy  v.  Mar- 
tin, 58  Wis.  276,  16  N.  W.  603 ;  Colter  v.  Lower,  35  Ind.  285,  9  Am. 
Rep.  735 ;  7  Amer.  &  Eng.  Enc.  Law,  663,  664,  and  cases  cited.  See, 
also,  Turpin  v.  Remy,  3  Blackf.  (Ind.)  210;   Mitchell  v.  State,  12  Ark. 

14  N.  C.  Ry.  V.  Holland,  117  Pa.  613,  626,  12  Atl.  575  (1888:  a  railroad 
permitted  smoke  and  cinders  from  its  engines  to  enter  the  plaintiff's  house). 
Accord.  Preston  v.  Mercer,  Hardres,  60  (165G :  the  defendant  permitted  filth 
to  collect  near  the  plaintiff's  wall  and  to  enter  the  plaintiff's  land  through 
the  wall) ;  Kellj'  v.  Lett,  35  N.  C.  50  (1S51 :  the  defendant  retained  the  water 
of  a  creek  by  a  dam  and  then  suddenly  opened  the  dam  purposely  to  injure 
the  plaintiff's  laud  by  the  rush  of  water).  Contra. 

If  trespass  is  improper,  no  doubt  case  will  lie.  Crockett  v.  Millet,  65  Me. 
191  (1875)  semble ;  Lindeman  v.  Lindsay,  69  Pa.  93,  102,  8  Am.  Rep.  219  (1871), 
In  these  cases  no  entry  upon  the  land  occurred. 


Ch,  1)  TRESPASS  15 

50,  54  Am.  Dec.  253,  and  cases  cited;  1  Chitty,  PI.  *133,  *167.  The 
gravamen  of  the  offense  of  false  imprisonment  is  the  unlawful  deten- 
tion of  another  without  his  consent,  and  malice  is  not  an  essential  ele- 
ment thereof ;  while,  in  an  action  for  malicious  prosecution,  the  es- 
sential elements  are  malice  and  want  of  probable  cause  in  the  pro- 
ceeding complained  of.  But  while,  for  the  reasons  above  given,  we 
think  the  demurrer  should  be  sustained,  yet,  as  the  form  of  action 
employed  by  the  plaintiflf  is  case,  which  is  the  proper  one  in  actions 
for  malicious  prosecution,  we  see  no  sufficient  reason  for  sustaining 
the  defendant's  plea  in  abatement  to  the  writ  and  declaration.  The 
demurrer  is  sustained,  and  the  plea  in  abatement  is  overruled,  with 
leave  to  the  plaintiff'  to  file  a  motion  to  amend  his  writ  and  declara- 
tion.^' 


HALLIGAN  v.  CHICAGO  &  R.  I.  R.  CO. 

(Supreme  Court  of  Illinois.  1854.     15  111.  558.) 

Treat,  C.  J.^®  This  was  an  action  of  trespass  quare  clausum  f  regit, 
brought  by  Halligan  against  the  Chicago  and  Rock  Island  Railroad 
Company.  The  first  three  counts  of  the  declaration  alleged  in  sub- 
stance, that  the  defendant,  on  the  first  of  January,  1853,  broke  and 
entered  two  closes,  the  property  of  the  plaintiff,  situated  in  the  county 
of  La  Salle,  and  described  as  the  west  half  of  lot  ten  in  block  one 
hundred  and  fifty-two,  and  lot  three  in  block  sixteen,  in  the  city  of 
Peru,  and  pulled  down  and  destroyed  two  houses  standing  thereon. 
The  fourth  count  alleged,  that  the  defendant  "on  the  day  and  year 
aforesaid,  with  force  and  arms,  broke  and  entered  the  aforesaid  closes 
of  the  said  Patrick  Halligan,  and  then  and  there  ejected,  expelled, 
put  out,  and  amoved  the  said  Patrick  Halligan  and  his  family  and 
servants,  and  divers  other  persons,  to  wit,  Michael  P'endergast  and 
Alexander  Frinkler,  tenants  of  the  said  Patrick  Halligan,  (said  ten- 
ants then  and  there  using  and  occupying  said  premises  for  hire,  and 
paying  unto  the  said  Patrick  Halligan  therefor  at  the  rate  of  one 
thousand  dollars  per  annum,)  from  the  possession,  use,  occupation, 
and  enjoyment  of  the  said  premises,  and  kept  and  continued  the  said 

16  Jones  V.  Gwynn,  10  Mod.  214,  217  (1714) ;  Elsee  v.  Smith,  1  Dowl.  &  Ry. 
97  (1822);  Holly  v.  Carson.  39  Ala.  345  (1S64) ;  Haskins  v.  Ralston,  69  Mich. 
63,  37  N.  W.  45,  13  Am.  St.  Rep.  376  (188S:  but  see  Moore  v.  Thompson,  92 
Mich.  498,  52  N.  W.  1000  [1892],  where  a  statute  abolishing  the  distinction  be- 
tween trespass  and  case  was  held  to  make  trespass  lie) ;  Herzog  v.  Graham, 
9  Lea  (Tenn.)  152  (1882).  Accord.     For  further  citations,  see  6  Cyc.  687. 

If  the  process  is  void  trespass  will  lie.  Morgan  v.  Hughes,  2  D.  &  E.  225 
^1788) ;  Hunt  v.  McArthur,  24  U.  C.  Q.  B.  254  (1865) ;  Sheppard  v.  Furniss, 
19  Ala.  700.  704  (1851)  semble ;  Nachtrieb  v.  Stoner,  1  Colo.  424  (1872);  Berry 
V.  Hamill,  12  Serg.  &  R.  (Pa.)  210  (1824).  Accord.  In  a  few  cases  it  is  said, 
but  not  decided,  that  either  trespass  or  case  will  lie.  Anderson  v.  Wilson,  25 
Out.  91.  96  (1894);  Apsjar  v.  Woolston,  43  N.  .7.  Law,  57  (1881);  Morris  v. 
Scott,  21  Wend.  (N.  Y.)  281,  34  Am.  Dec.  236  (1839). 

10  Part  of  the  opinion  omitted. 


16  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

Patrick  Halligan  and  his  family  and  servants,  and  also  his  said  ten- 
ants, so  ejected,  expelled,  put  out,  and  amoved,  for  a  long  space  of 
time,  to  wit,  from  thence  hitherto;  whereby  the  said  Patrick  Halli- 
gan, for  and  during  all  that  time,  lost,  was  deprived  of  the  use  and 
benefit  of  the  said  premises,  and  of  the  rents,  issues,  and  profits  there- 
of, accruing  to  the  said  Patrick  Halligan  from  said  tenants,  to  wit, 
at  the  county  aforesaid,  to  the  damage  of  the  said  Patrick  Halli- 
gan." The  defendant  demurred  to  the  declaration,  and  assigned  as 
special  causes  of  demurrer  to  the  fourth  count,  that  it  alleged  two 
distinct  causes  of  action,  and  showed  the  locus  in  quo  to  have  been 
in  the  possession  of  other  parties.  The  court  overruled  the  demur- 
rers to  the  three  first  counts,  and  sustained  the  demurrer  to  the  fourth 
count.  The  plaintiff  thereupon  entered  nolle  prosequi  as  to  the  first 
three  counts,  and  the  defendant  had  judgment  on  the  demurrer  to 
the  fourth  count.     *     *     * 

To  maintain  trespass  quare  clausum  fregit,  the  plaintiff  must  have 
the  actual  or  constructive  possession  of  the  premises.  The  gist  of  the 
action  is  the  injury  to  the  possession.  If  the  premises  are  occupied, 
the  action  must  be  brought  by  the  party  in  possession ;  if  unoccupied, 
by  the  party  having  the  title  and  the  right  to  possession.  The  owner 
cannot  maintain  the  action,  where  the  land  is  in  the  occupancy  of 
his  tenant.  The  trespass  is  a  disturbance  of  the  tenant's  possession 
and  he  alone  can  bring  the  action.  Bac.  Abr.  Trespass,  C.  3 ;  1  Chit- 
ty,  PI.  202;  Campbell  v.  Arnold,  1  Johns.  (N.  Y.)  511;  Holmes  v. 
Seeley,  19  Wend.  (N.  Y.)  507;  Bartlett  v.  Perkins,  13  Me.  87;  Rous- 
sin  v.  Benton,  6  Mo.  592;  Davis  v.  Clancy,  3  McCord  (S.  C.)  422.  If 
the  trespass  is  prejudicial  to  the  inheritance,  the  remedy  of  the  own- 
er is  by  an  action  on  the  case.  He  may,  in  that  form  of  action,  re- 
cover damages  for  any  injury  to  the  freehold.  Bedingfield  v.  Ons- 
low, 4  Levinz,  209 ;  Jesser  v.  Gifford,  4  Burr.  2141 ;  Lienow  v.  Rit- 
chie, 8  Pick.  (Mass.)  235;  Brown  v.  Dinsmoor,  3  N.  H.  103;  Ran- 
dall V.  Cleaveland,  6  Conn.  328 ;   Hall  v.  Snowhill,  14  N.  J.  Law,  8. 

If  Pendergast  and  Frinkler  were  in  the  possession  of  the  lots  as 
the  tenants  of  the  plaintiff  when  the  injury  was  committed,  it  is  clear 
that  they  alone  can  maintain  trespass.  In  such  event,  the  entry  was 
an  interference  with  their  possession.  The  plaintiff  had  no  posses- 
sion to  be  invaded.  For  any  injury  to  the  reversion,  he  has  an  ade- 
quate remedy  in  another  form  of  action.  The  count  in  question  does 
not  disclose  a  state  of  case,  that  entitles  the  plaintiff  to  maintain  the 
action  of  trespass.  It  shows  that  the  lots  were  in  the  actual  posses- 
sion of  his  tenants.  It  alleges  that  his  "tenants  were  then  and  there 
using  and  occupying  said  premises  for  hire,  and  paying  unto  him 
therefor  at  the  rate  of  $1,000  per  annum."  This  language  clearly 
implies  a  leasing  of  the  whole  of  the  lots,  and  an  exclusive  posses- 
sion thereof  by  the  tenants.  Nor  is  there  any  thing  in  the  count  that  - 
is  necessarily  inconsistent  with  the  truth  of  this  averment.  It  indeed 
alleges  an  expulsion  of  the  plaintiff  and  his   family  from  the  lots. 


Ch.  1)  TRESPASS  17 

It  may,  however,  be  that  they  were  temporarily  on  the  premises  as 
guests  of  the  tenants,  or  for  some  purpose  consistent  with  an  exclusive 
right  in  the  tenants.  If  so,  the  injury  complained  of  only  amounted 
to  a  trespass  to  their  persons.  The  count  does  not  show  such  a  pos- 
session in  the  plaintiff,  as  authorizes  him  to  maintain  trespass  quare 
clausum  fregit.  It  ought  clearly  to  show  that  he  had  the  actual  or 
constructive  possession  of  the  premises  or  some  part  thereof.  If 
the  lease  reserved  a  part  of  the  lots,  or  if  the  plaintiff  was  at  the 
time  of  the  trespass  in  the  exclusive  possession  of  some  portion  there- 
of, the  count  should  so  have  stated.  As  respects  such  portion,  the 
action  might  be  sustained.  There  was  no  occasion  for  the  plaintiff 
to  refer  to  the  lease;  but  having  introduced  it  into  the  declaration, 
it  was  incumbent  on  him  to  show  that  it  did  not  conclude  him  from 
maintaining  the  action. 

There  are  some  cases  which  hold  that  trespass  quare  clausum  fre- 
git may  be  maintained  by  the  owner  for  an  injury  to  the  freehold, 
though  the  land  be  in  the  possession  of  his  tenant  at  will.  Starr  v. 
Jackson,  11  Mass.  519;  Hingham  v.  Sprague,  15  Pick.  (Mass.)  102; 
Curtiss  v.  Hoyt,  19  Conn.  154,  48  Am.  Dec.  149 ;  Davis  v.  Nash,  32 
Me.  411.^^  And  it  is  insisted  that  this  action  may  be  sustained  on 
the  authority  of  these  cases.  But  there  is  a  conclusive  answer  to 
this  position.  It  does  not  appear  that  the  parties  in  possession  were 
the  tenants  at  will  of  the  plaintiff.  The  precise  character  of  the  ten- 
ancy is  not  stated  in  the  declaration.  It  is  alleged  that  Pendergast 
and  Frinkler  were  the  lessees  of  the  premises,  paying  rent  therefor  at 
the  rate  of  $1,000  per  annum.  The  inference  from  this  statement  is, 
that  the  demise  was  for  a  definite  period,  as  a  month  or  a  year,  rather 
than  at  the  mere  will  of  the  lessor.  In  order  to  sustain  the  case  on 
the  ground  indicated,  it  should  distinctly  appear  that  Pendergast 
and  Frinkler  were  tenants  at  will  of  the  plaintiff.  Intendments  are 
not  indulged  to  sustain  a  pleading.  If  subject  to  the  charge  of  un- 
certainty or  ambiguity,  it  is  to  be  construed  most  strongly  against 
the  pleader.  If  an  allegation  is  equivocal,  and  two  meanings  present 
themselves,  the  one  will  be  adopted  that  is  most  unfavorable  to  the 
party  pleading.     1  Chitty,  PI.  272;    Stephen  on  PL  379. 

Judgment  affirmed.^ ^ 

IT  Tobey  v.  Webster,  3  Johns.  (N.  Y.)  468  (1808)  semble;  Strong  v.  Adams, 
30  Vt.  221,  73  Am.  Dec.  305  (1S5S)  semble.  Accord.  Bartlett  v.  Perkins,  13 
Me.  87  (1836)  ;    Hersey  v.  Chapin,  162  Mass.  176,  38  N.  E.  442  (1894).  Contra. 

isBedingfield  v.  Onslow,  3  Lev.  209  (1627)  semble;  Brooks  v.  Clifton,  22 
Ark.  54,  60  (1860) ;  Roussin  v.  Benton,  6  Mo.  592  (1840) ;  Holmes  v.  Seeley,  19 
Wend.  (N.  Y.)  507  (1838) ;  Filler  v.  Shotwell,  7  Watts  &  S.  (Pa.)  14  (1844) ; 
Bacon  v.  Bullard,  20  R.  I.  404,  39  Atl.  751  (1898).  Accord. 

Case  will  lie.  Bedincfield  v.  Onslow,  3  Lev.  20O  (1627) ;  Randall  v.  Cleave- 
land,  6  Conn.  328  (1827);  Buckl  v.  Cone,  25  Fla.  1.  6  South.  160  (1889); 
City  of  Champaign  v.  McMurray,  76  111.  353  (1875)  semble ;  Lienow  v.  Ritchie, 
8  Pick.  (Mass.)  2.35  (1829) ;  Hall  v.  Snowliill,  14  N.  J.  Law,  8,  15  (1833) ;  Kent 
V.  Buck,  45  Vt.  18  (1872).  For  further  citations,  see  6  Cyc.  692. 
Whit.C.L.Pl.— 2 


18  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

COOKE  V.  THORNTON. 
(Court  of  Appeals  of  Virginia,  1827.     6  Rand.  8.) 

Carr,  J.^®  Cooke  leased  to  Thornton  a  tenement  in  Fredericks- 
burg for  seven  years.  He  afterwards  dispossessed  him  of  the  tene- 
ment, before  the  expiration  of  the  term;  there  being  about  three 
years  of  the  lease  to  run  when  this  suit  was  brought.  This  is  an 
action  of  trespass  quare  clausum  fregit,  brought  by  the  tenant  for  this 
wrong.  The  declaration  shews  that  there  had  been  no  re-entry; 
but,  that  the  possession  gained  by  the  ouster,  continued  in  the  land- 
lord. 

Several  points  were  made  in  the  court  below,  but  one  only  was 
relied  on  in  the  argument  here,  or  seems  worthy  of  notice.  It  is 
that  growing  out  of  the  first  bill  of  exceptions.  The  counsel  for  the 
defendant  moved  the  court  to  instruct  the  jury,  "that  admitting  the 
dispossession  to  be  wrongful,  they  ought  not  to  take  into  consideration, 
in  their  estimate  of  damages,  the  injury  resulting  from  the  plaintiff's 
being  kept  out  of  possession,  from  the  date  of  the  writ  to  the  ex- 
piration," (of  the  term,)  "but  only  from  the  time  of  the  disposses- 
sion, until  the  suit  was  brought ;"  which  instruction  the  court  re- 
fused to  give. 

In  this  refusal,  I  think  there  was  a  clear  error.  To  maintain  this 
action,  there  must  have  been  an  actual  possession  when  the  trespass 
complained  of  was  committed.  Before  entry  and  actual  possession, 
a  person  having  the  freehold  in  law,  cannot  have  a  trespass.  Thus, 
it  will  not  lie  before  entry  for  a  conusee  of  a  fine,  or  a  purchaser  by 
lease  and  release,  or  an  heir  or  devisee  against  an  abator.  A  disseisee 
may  have  it  against  the  disseisor  for  the  disseisin  itself,  because  he 
was  then  in  possession:  but  not  for  an  injury  after  the  disseisin, 
until  he  hath  gained  possession  by  re-entry ;  and  then  he  may  sup- 
port this  action  for  the  intermediate  damage;  for,  after  the  entry, 
the  law,  by  a  kind  of  jus  postliminii,  (as  Blackstone  expresses  it,) 
supposes  the  freehold  to  have  all  along  continued  in  him.  I  might 
quote  many  passages  from  the  books,  in  support  of  this. 

Co.  Litt.  257,  a :  "The  disseisee  shall  have  an  action  of  trespass 
against  the  disseisor,  and  recover  his  damages  for  the  first  entry  with- 
out any  regress;  but  after  regress,  he  may  have  an  action  of  trespass 
with  a  continuando,  and  recover,  as  well  for  all  the  mesne  occupation, 
as  for  the  first  entry." 

Monckton  v.  Pashley,  &c.  2  Ld.  Raym.  977.  Per  Lord  Holt:  "As 
to  the  case  of  an  entry  with  ouster,  it  may  be  set  forth  specially  in 
the  count,  or  not,  with  a  continuando,  or  diversis  diebus  et  vicibus,  be- 
tween such  a  day  and  such  a  day ;   but,  then  you  must  prove,  that  the 

19  Concurring  opinions  of  Judges  Green  and  Cabell  are  omitted.  The  Presi- 
dent and  Judge  Coalter  were  absent. 


Ch.  1)  TRESPASS  19 

plaintiff  re-entered  before  the  action  brought,  or  else  you  cannot  as- 
sign the  mesne  trespass ;  for,  by  the  ouster,  the  defendant  has  got  pos- 
session, and  he  cannot  be  a  trespasser  to  the  plaintiff;  but  when  the 
plaintiff  re-enters,  the  possession  is  in  him  ab  initio,  and  he  shall 
have  the  mesne  profits." 

I  have  seen  the  rule  no  w^here  more  clearly  laid  down,  than  in  the 
case  of  Case  v.  Shepherd,  2  Johns.  Cas.  (N.  Y.)  27.  Per  Curiam: 
"In  this  case,  the  trespass  is  laid  with  a  continuando,  but  the  distinc- 
tion, as  to  the  amount  of  damages,  is  this :  After  an  ouster,  you  can 
only  recover  for  the  simple  trespass,  or  first  entry,  for,  where  there 
is  an  ouster,  every  subsequent  act  is  a  continuance  of  the  trespass. 
Yet,  in  order  to  entitle  the  plaintiff  to  recover  for  the  subsequent  acts, 
there  must  be  a  re-entry.  But,  after  a  re-entry,  he  may  lay  his  action 
with  a  continuando,  and  recover  mesne  profits,  as  well  as  damages 
for  the  ouster." 

In  the  case  before  us,  there  was  an  ouster,  and  no  re-entry.  The 
plaintiff,  therefore,  could  recover  for  the  simple  trespass,  or  first 
entry  only.  He  could  not  lay  his  action  with  a  continuando.  The 
defendant,  therefore,  might  have  asked  for  much  broader  instruc- 
tions than  he  did.  He  only  asked  that  the  jury  might  be  instructed 
not  to  give  damages  from  the  time  of  dispossession  till  the  expiration 
of  the  lease,  but  to  the  date  of  the  writ;  and  by  refusing  this  in- 
struction, the  court  virtually  told  the  jury,  that  they  might  give  dam- 
ages for  the  whole  term  unexpired  at  the  date  of  the  ouster.  This 
was  unquestionably  wrong. 

I  think  the  judgment  should  be  reversed,  and  the  cause  sent  back 
for  a  new  trial ;  upon  which,  such  instructions  as  result  from  the 
principles  now  laid  down,  should  be  given,  if  asked  for. 

Judgment  reversed.^" 

20  King  V.  Watson,  5  East,  485  (1804)  semble;  Clark  v.  Hill,  1  Har.  (Del.) 
335  (1S32) ;  Gent  v.  Lynch,  23  Md.  58,  87  Am.  Dec.  558  (18(55) ;  Emerson  v. 
Thompson.  2  Pick.  (Mass.)  473,  484  (1824) ;  Holmes  v.  Seely,  19  Wend.  (N.  Y.) 
507  (1838) ;  Alderman  v.  Way,  4  Yeates  (Pa.)  218  (1805).  Accord.  Page  v. 
Robinson,  10  Cush.  (Mass.)  99  (1852);  Harris  v.  Haynes,  34  Vt.  220  (ISUl) 
semble.  Contra.    For  further  citations,  see  2S  Am.  &  Eng.  Ency.  573. 

Case  will  lie.  Topping  v.  Evans,  58  111.  209  (1871) ;  Files  v.  Magoon,  41 
Me.  104  (1856) ;  Campbell  v.  Arnold.  1  Johns.  (N.  Y.)  511  (1806)  semble. 
Accord.     Miller  v.  Bomar,  9  Rich.  Law  (S.  C.)  139  (185.o).  Contra. 

If  a  disseisee  re-enters  he  may  maintain  trespass  for  damage  done  between 
the  disseisin  and  the  re-entry.  Holcomb  v.  Rawlyns.  Cro.  Eliz.  540  (1596) 
semble ;  Stean  v.  Anderson,  4  Har.  (Del.)  209,  216  (1845) ;  Emerson  v.  Thomp- 
son, 2  Pick.  (Mass.)  473  (1824);  Brewer  v.  Beckwith,  35  Miss.  467,  472  (18-58); 
Case  V.  De  Goes,  3  Calnes  (N.  Y.)  262  (1805).  See,  also,  28  Am.  &  Eng.  Ency. 
577. 

Statutes  are  common  authorizing  the  recovery  of  mesne  profits  in  elect- 
ment.  Alabama.  Code  1907,  §  3839 ;  District  of  Columbia.  Code  of  Laws  1901, 
§  995;  Florida,  Gen.  St.  1906.  §  1968;  Illinois,  Hurd's  Rev.  St.  1908,  c.  45, 
§  83;  Maine,  Rev.  St.  1883  (Supp.  1895)  c.  104,  §  11;  Massachusetts,  Rev. 
Laws  1902,  c.  179,  §  12;  ISIichigan,  Comp.  Laws  1897,  §§  10,988-10,994,  10,999- 
11,003;  Mississippi,  Code  190G,  §  1848;  New  Jersey,  2  Gen.  St.  1895,  Eject- 
ment, p.  1289,  §  45 ;  Vermont.  St.  1894,  §  1504 ;  Virginia,  Code  1904,  §  2751 ; 
West  Virginia,  Code  1906,  §  3365. 


20  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

NACHTRIEB  v.  STONER. 

(Supreme  Court  of  Colorado  Territory,  1872.     1  Colo.  423.) 

Wells,  J.^^  *  *  *  ^^^^  plaintiff  in  the  court  below  complained 
in  effect,  that  the  defendant  had  procured  an  inferior  court  to  issue  an 
attachment  against  the  plaintiff's  estate  in  a  case  where  such  process 
was  unwarranted  by  law,  and  to  give  judgment  and  direct  a  sale  of  the 
estate  upon  mere  constructive  notice  of  the  proceeding,  he  being  then 
a  resident  of  the  territory,  and  entitled  to  actual  notice  by  service  of 
process;  that  by  virtue  of  the  sale  so  ordered,  the  defendant  had 
possessed  himself  of  and  converted  to  his  own  use,  property  of  the 
plaintiff  to  the  value  of  several  hundred  dollars,  and  that  all  this  was 
done  in  the  prosecution  of  a  pretended  claim  of  indebtedness  which 
never  existed.  The  jury  have  found  that  the  facts  are  as  asserted 
by  the  plaintiff;   the  evidence  warrants  the  finding.     *     *     * 

The  circumstance,  that  before  the  alleged  trespass  a  portion  of  the 
property  was  in  the  possession  of  a  third  person  who  had  a  special 
property  therein  by  lien  or  pledge,  does  not,  as  we  think,  have  the 
effect  to  defeat  the  plaintiff's  action  or  modify  the  rule  of  damages. 
True,  it  is,  in  general,  that  in  trespass  de  bonis  the  plaintiff  must 
show,  that  at  the  time  of  the  trespass  complained  of  he  had  actual 
possession  of  the  goods,  or  had  property  therein,  either  general  or 
at  least  special,  with  the  right  to  the  immediate  possession,  and  an 
outstanding  possession  in  a  third  person,  with  the  right  in  such  per- 
son to  retain  it  until  the  discharge  of  an  indebtedness  or  the  happen- 
ing of  some  other  condition  might,  with  reason,  be  said  to  disable 
the  general  owner  from  bringing  trespass.  Gauche  v.  Mayer,  27  111. 
134;  Thorpe  v.  Burling,  11  Johns.  (N.  Y.)  285;  Gay  v.  Smith,  38 
N.  H.  171. 

For  in  such  case  the  interest  of  the  general  owner  is  merely  rever- 
sionary and  not  present,  and  for  an  injury  to  such  interest  case  lies 
but  not  trespass.  But,  in  the  present  case,  the  demand  for  which  the 
goods  had  been  held  in  pledge  was  paid  off  by  the  plaintiff  in  the 
attachment,  now  plaintiff  in  error,  before  the  levy,  which  involves  the 
trespass  complained  of,  and  we  think  this,  by  construction  of  law, 
restored  the  general  owner  to  his  possession,  for,  though  the  pledgee 
of  goods  may  clearly  enough  transfer  possession  thereof  to  another, 
as  his  servant  or  bailee,  without  waiver  of  his  lien,  and  though,  as 
we  conceive,  any  third  person  may  advance  to  the  pledgee  his  de- 
mand, receiving  possession  of  the  goods  as  his  security,  and  may 
lawfully  retain  such  possession  until  repaid  his  advances,  yet  the 
authorities  appear  to  be  uniform,  that  if  the  pledgee  or  lienholder 
set  up  any  title  or  claim  inconsistent  with  or  independent  of  the  lien, 
this  will  amount  to  a  waiver  thereof.    3  Pars,  on  Cont.  244. 

21  Statement  of  facts  and  part  of  the  opinion  omitted. 


Ch.  1)  TRESPASS  21 

Therefore,  inasmuch  as  the  possession  of  the  constable  who  levied 

the  attachment  complained  of  was   from  the  beginning  independent 

of  and  hostile  to  the  lien  by  which  the  property  had  before  been  held 

— the  very  purpose  for  which  the  money  was  advanced  to  the  pledgee 

being  to  enable  the  officer  to  proceed  with  the  property  in  a  manner 

inconsistent  with  the  lien — it  cannot  be  said  that  this  incumbrance  or 

special  property  followed  the  goods  into  the  custody  of  the  constable. 

On  the  contrary,  by  the  payment  of  the  amount  for  which  the  goods 

had  before  been  held,  the  lien  was  dissolved  and  the  right  to  the 

immediate  possession  was  eo  instanti  restored  to  the  general  owner. 
*     *     * 

Affirmed.** 


GILLESPIE  V.  DEW. 

(Supreme  Court  of  Alabama,  1827.     1  Stew.  229,  18  Am.  Dec.  42.) 

In  Greene  Circuit  Court,  James  Gillespie  declared  in  trespass  against 
Duncan  Dew  that,  the  defendant  broke  and  entered  his  close,  and 
cut  down  and  carried  away  sundry  timber  trees,  &c.  General  issue. 
Verdict  and  judgment  for  defendant.  On  the  trial  the  plaintiff  proved 
title  to  the  land,  and  that  the  defendant  had  cut  timber  thereon  and 
carried  it  away,  while  the  plaintiff  was  so  entitled.  It  was  proved 
that  the  plaintiff  resided  about  twenty  miles  from  the  land.  It  did 
not  appear  that  any  one  was  in  actual  possession  when  the  timber 
was  cut,  &c.  The  Circuit  Court  charged  the  jury  that,  unless  the 
evidence  shewed  that  the  plaintiff  by  himself  or  agent,  was  in  actual 
possession  of  the  land,  when  the  trespass  was  committed,  they  must 
find  for  the  defendant.  To  which  the  plaintiff  excepted,  and  here 
assigned  this  matter  as  error. 

Judge  White  delivered  the  opinion  of  the  Court. 

The  charge  was  in  accordance  with  the  English  authorities,  and 
with  the  decisions  in  some  of  the  states  in  the  Union.  But  in  North 
Carolina,  New  York  and  Connecticut,  it  has  been  held  that,  where 
there  is  no  adverse  possession,  he  who  has  title,  though  he  has  never 
been  in  actual  possession,  may  maintain  the  action  of  trespass. 

The  situation  of  our  country  requires  this  modification  of  the  Eng- 
lish doctrine.  In  England,  almost  all  the  lands  are  occupied,  but 
here,  the  proprietor  often  lives  at  a  great  distance  from  some  of  his 
lands  which  are  not  occupied  by  tenants,  and  unless  they  can  maintain 
this  action,  they  must  be  denied  an  important  remedy  for  injuries  to 
their  property     Their  right  to  this  remedy  is  sustained  by  the  strong 

22  Chaunce  v.  Twenge,  Y.  B.  11  &  12  Edw.  Ill,  38-40  (1337) ;  Lotan 
V,  Cross,  2  Camp.  4G4  (1810) ;  Stanley  v.  Gaylord,  1  Cusli.  (Mass.)  530. 
48  Am.  Dec.  643  (1848) ;  Thorp  v.  Burling,  11  Johns.  (N.  Y.)  285  (1814) 
semble;  Buck  v.  Aikin,  1  Weud.  (N.  Y.)  4G6,  19  Am.  Dec.  535  (]8ii8).  Ac- 
cord. 


22  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

argument  of  convenience,  and  by  the  respectable  authorities  referred  to 
by  the  counsel  for  the  plaintiff. 

We  are  of  opinion  that,  where  there  is  no  adverse  possession,  the 
title  draws  with  it  constructive  possession,  so  as  to  sustain  the  action 
of  trespass.    Let  the  judgment  be  reversed  and'the  cause  be  remanded. 

Judge  Gayi^e;  not  sitting.^^ 


GRAHAM  v.  PEAT. 
(Court  of  King's  Bench,  ISOl.     1  East,  244.) 

Trespass  quare  clausum  f regit.  Plea  the  general  issue,  (and  cer- 
tain special  pleas  not  material  to  the  question).  At  the  trial  before 
Graham,  B.,  at  the  last  assizes  at  Carlisle,  the  trespass  was  proved 
in  fact;  but  it  also  appeared  that  the  locus  in  quo  was  part  of  the 
glebe  of  the  rector  of  the  parish  of  Wo/kington  in  Cumberland,  which 
had  been  demised  by  the  rector  to  the  plaintiff,  and  that  the  rector 
had  not  been  resident  within  the  parish  for  five  years  last  past,  and 
no  sufficient  excuse  was  shewn  for  his  absence.  Whereupon  it  was 
objected  that  the  action  could  not  be  maintained,  the  lease  being  ab- 
solutely void  by  the  act  of  13  EHz.  c.  20,  which  enacts,  "that  no 
lease  of  any  benefice  or  ecclesiastical  promotion  with  cure  or  any  part 
thereof  shall  endure  any  longer  than  while  the  lessor  shall  be  ordi- 
narily resident  and  serving  the  cure  of  such  benefice  without  absence 
above  fourscore  days  in  any  one  yearj  but  that  every  such  lease 
immediately  upon  such  absence  shall  cease  and  be  void."  And  there- 
upon 4;he  plaintiff  was  nonsuited. 

A  rule  was  obtained  in  Michaelmas  term  last  to  shew  cause  why 
the  nonsuit  should  not  be  set  aside,  upon  the  ground  that  the  action 
was  maintainable  against  a  wrong-doer  upon  the  plaintiff's  possession 
alone,  without  shewing  any  title. 

Lord  Kenyon,  C.  J.  There  is  no  doubt  but  that  the  plaintiff's 
possession  in  this  case  was  sufficient  to  maintain  trespass  against  a 
wrong-doer;  and  if  he  could  not  have  maintained  an  ejectment  upon 
such  a  demise,  it  is  because  that  is  a  fictitious  remedy  founded  upon 
title.  Any  possession  is  a  legal  possession  against  a  wrong-doer. 
Suppose  a  burglary  committed  in  the  dwelling-house  of  such  an  one, 
must  it  not  be  laid  to  be  his  dwelling-house  notwithstanding  the  de- 
fect of  his  title  under  the  statute. 

Per  Curiam.     Rule  absolute.^* 

23  Cairo  Co.  v.  Woosley,  85  111.  370  (1877);  Gent  v.  Lynch,  23  Md.  58,  87 
Am.  Dec.  558  (1805) ;  Safford  v.  Basto,  4  Mich.  406  (1857) ;  Cohoon  v.  Sim- 
mons, 29  N.  C.  190  (1847)  semble ;  McCormick  v.  Monroe,  46  N.  C.  13  (1853) ; 
Robinson  v.  Douslass,  2  Aikens  (Vt.)  364  (1827)  semble.  Accord.  McClain 
V.  Todd's  Heirs,  5  J.  J.  Marsh.  (Ky.)  335,  22  Am.  Dec.  37  (1831).  Contra 
See,  also,  28  Am.  &  Eng.  Ency.  578. 

24  Harper  v.  Charlesworth,  4  B.  &  C.  574  (1825).  Accord. 

Cvne  rightfully  in  possession  may  bring  trespass.  Colwill  v.  Reeves,  2  Camp. 
57r»  0^811)  ;    Stanton  v.  Lapp,  77  Atl.  (Md.)  672,  675  (1910)  semble ;    Hasbrouck 


Ch.  1)  TRESPASS  23 

WINCHER  V.  SHREWSBURY. 

(Supreme  Court  of  Illinois,  1S40.     2  Scam.  283,  35  Am.  Dec.  108.) 

This  was  an  action  of  trespass  commenced  by  the  defendant  in 
error  against  the  plaintiff  in  error,  before  a  justice  of  the  peace  of 
Morgan  county.  The  justice  rendered  judgment  for  the  defendant 
in  error,  for  the  sum  of  ten  dollars  and  sixty-eight  cents,  from  which 
an  appeal  was  taken  to  the  Circuit  Court  of  Morgan  County,  where 
the  cause  was  tried  at  the  November  term,  1839,  before  the  Hon. 
William  Thomas,  without  a  jury,  upon  the  following  agreed  state 
of  facts: 

"The  plaintiff  went  upon  a  tract  of  land  which  belonged  to  the 
government  of  the  United  States,  and  made  ten  hundred  and  sixty 
rails,  and  cut  and  sawed  timber.  All  of  said  rails  and  timber  were 
of  the  value  of  fifteen  dollars,  and  were  made  of  timber  trees  situated 
upon  said  land.  Said  rails  were  lying  in  piles  through  the  woods, 
on  the  land  aforesaid,  and  the  sawed  timber  lying  on  the  land,  and 
in  that  situation  were  of  the  value  aforesaid.  While  the  timber  was 
thus  situated  on  said  land,  the  defendant  entered  and  purchased  the 
land  of  the  United  States,  and  paid  for  it,  but  had  no  patent  for 
said  land,  but  a  certificate  of  purchase  from  the  United  States.  Said 
defendant  prohibited  the  plaintiff  from  taking  this  timber  off  of  his, 
defendant's  land,  and  went  and  hauled  the  rails  and  timber  away, 
and  converted  them  to  his  own  use,  without  the  consent  of  the  plain- 
tiff. To  recover  the  value  of  said  rails  and  timber,  this  suit  was 
brought. 

"November  5th,  1839.  Samuel  Wincher, 

"Michael  Shrewsbury." 

The  Court  rendered  judgment  for  the  defendant  in  error,  for  the 
sum  of  fifteen  dollars. 

Wilson,  Chief  Justice,  delivered  the  opinion  of  the  Court: 

The  facts  of  this  case  are,  that  the  plaintiff  below  had  made,  from 
timber  growing  on  government  land,  a  quantity  of  rails,  and  left 
them  piled  upon  the  land.  The  defendant  afterwards  entered  the 
land,  and  took  the  rails,  for  which  the  plaintiff  brought  this  action. 
I  have  no  doubt  of  the  plaintiff's  right  of  recovery  against  the  defend- 
ant. It  is  true,  that  the  wrongful  taking  or  conversion  of  the  prop- 
erty of  another,  does  not  give  the  trespasser  a  title,  as  against  the 
owner,  who  may  follow  and  recover  it  as  long  as  it  may  be  identified. 
But  this  rule  applies  only  to  the  owner  of  the  property  taken,  and 
not  to  a  stranger. 

Had  the  defendant  any  title  to  the  rails  in  question,  and  how  did 
he  acquire  it?    At  the  time  the  trespass  was  committed  by  the  plain- 

V.  Winkler,  48  N.  J.  Law,  431,  6  Atl.  22  (18S6) ;  Cook  v.  Howard,  13  Johns 
(N.  Y.)  276  (1816);  Goodrich  v.  Hathaway,  1  Vt.  4S5,  18  Am.  Dec.  701  (1S29), 
See,  also,  28  Am.  &  Eng.  Ency.  57'' 


2i  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

tiff,  the  land,  and  consequently  the  timber  growing  on  it,  of  which 
the  rails  were  made,  belonged  to  the  government.  The  cutting  of 
the  timber  was  therefore  an  injury  and  a  trespass  against  the  gov- 
ernment; and  it  had  a  legal  remedy.  Therefore  the  defendant  had 
neither  a  right  of  property,  nor  a  right  of  action,  at  the  time  of 
the  plaintiff's  trespass,  in  making  the  rails.  To  what  then  did  he 
acquire  title,  by  a  subsequent  purchase  of  the  land?  Certainly  not 
to  a  right  of  action  for  a  previous  trespass;  nor  to  the  timber  which 
had  been  previously  severed  from  the  land,  and  converted  into  rails, 
farming  utensils,  or  any  thing  else.  A  certificate  of  purchase  or 
patent  vests  in  the  patentee  a  title  to  the  land,  and  generally  all  that 
is  growing  on,  or  in  the  contemplation  of  the  law  is  attached  to  the 
land, — as  houses,  fences,  growing  timber,  grain,  &c. ;"  and  it  is  said 
that  fallen  timber  passes  with  the  land.  But  that  which  has  been 
severed  from  the  land,  and,  by  the  art  and  labor  of  man,  converted 
into  personal  property,  such  as  implements  of  husbandry,  barrels, 
furniture,  or  even  rails  when  not  put  into  a  fence,  or  evidently  in- 
tended to  be  so  used  upon  the  land,  (which  could  not  be  inferred 
if  made  by  a  stranger,)  do  not  pass  with  it,  any  more  than  the  grain, 
grass,  or  fruit  which  has  grown  upon,  and  been  gathered  from  it. 
In  another  view  of  this  case,  the  defendant's  liability  would  seem 
clear. 

The  government  being  the  owner  of  the  land,  at  the  time  of  the 
trespass  by  cutting  timber,  it  might,  and  if  not  barred  by  time,  may 
yet  recover,  in  trespass,  for  the  injury  done  to  the  land,  or,  by  action 
of  trover,  recover  the  value  of  the  rails,  which  would  certainly  be  a 
bar  to  the  defendant's  recovery  for  the  same  trespass.  For  if  the 
defendant  may  convert  the  rails  to  his  own  use,  he  may  recover 
of  the  plaintiff  fora  conversion  by  him,  and  thus  subject  him  to  make 
compensation  twice  for  the  same  trespass. 

This  would  be  both  unjust  and  illegal.  The  vendor  and  vendee  of 
the  land  cannot  both  have  a  remedy  for  the  same  trespass ;  a  recovery 
by  one  would  be  a  bar  to  that  of  the  other,  A  recovery  by  the  govern- 
ment in  an  action  of  trover,  against  the  plaintiff  below,  for  the  value 
of  the  rails  made  on  its  land,  would  vest  the  right  to  them  in  him; 
and  though  it  does  not  appear  that  any  such  prosecution  has  been 
instituted  by  the  government,  yet  the  right  to  do  so  proves  the  de- 
fendant's want  of  title,  either  to  recover  for  the  trespass  on  the  land, 
or  to  take  the  rails  which  are  the  fruits  of  it.  The  judgment  is 
affirmed. 

Judgment  affirmed.^' 

2  5  Chambers  v.  Donaldson,  11  East,  65  (1S09) ;  Brock  v.  Berry,  31  Me. 
293  (1850) ;  Currier  v.  Gale,  9  Allen  (Mass.)  522  (1865) ;  Ware  v.  Collins,  35 
iMiss.  223,  72  Am.  Dec.  122  (185S) ;  Phillips  v.  Kent,  23  N.  J.  Law,  155  (1851) ; 
Hibbard  v.  Foster,  24  Vt.  542  (1S52).  Accord.  Jones  v.  Muldrow,  Rice 
(S.  C.)  64,  71  (1838)  semble.  Contra. 


Ch.  1)  TRESPASS  25 

BURSER  V.  MARTIN. 
(Court  of  King's  Bench,  1605.    Cro.  Jac.  46.) 

Trespass.  Ouare  equum  cepit  a  persona  of  the  plaintiff.  The  de- 
fendant pleaded  not  guilty,  and  it  was  found  against  him.  An  ex- 
ception was  taken  in  arrest  of  judgment,  because  he  doth  not  say 
equum  suum,  or  that  he  was  taken  from  the  plaintiff's  possession ; 
or  otherwise  it  may  be  that  the  plaintiff  had  not  any  cause  of  action, 
if  he  had  not  property  or  possession:  and  it  may  be,  for  anything 
which  appears  in  this  declaration,  that  he  had  not  any  of  them; 
wherefore  the  declaration  is  not  good. 

Gawdy,  Fenner,  and  Yelverton,  were  of  that  opinion;  and  that 
the  declaration  cannot  be  aided  by  intendment,  but  ought  to  be  certain. 

PopHAM  and  Williams  e  contra:  because  it  being  alleged  quod 
cepit  a  persona,  it  is  necessarily  to  be  intended  that  he  had  possession. 
Wherefore  &c. — But  notwithstanding,  afterwards,  upon  a  second  mo- 
tion, for  the  reasons  aforesaid,  it  was  adjudged  for  the  defendant.^* 


SECTION   2.— NECESSARY  ALLEGATIONS 


DECLARATION  IN  TRESPASS  FOR  ASSAULT 
AND  BATTERY. 

(Martin,    Civil    Procedure,   371.     Form   15.) 

In  the  Queen's  Bench. 

On  the day  of in  the  year  of  our  Lord  18 — . 

London  )  A.  B.,  by  X.  Y.,  his  attorney,  complains  of  C.  D.  who  has 
to  wit  [  been  summoned  to  answer  the  said  A.  B.  in  an  action  of 
trespass.  For  that  the  said  C.  D.  heretofore,  to  wit  on,  &c.  with 
force  and  arms,  &c.,  made  an  assault  on  the  said  A.  B.,  and  beat, 
bruised,  wounded,  and  ill  treated  him,  insomuch  that  his  life  was 
thereby  greatly  despaired  of,  and  other  wrongs  to  the  said  A.  B. 
he  the  said  C.  D.  then  did  against  the  peace  of  our  Lady  the  Queen, 
and  to  the  damage  of  the  said  A.  B.  of  fifty  pounds,  and  therefore 
he  brings  suit,  &c. 

2  6  Bless  V.  Holman,  Owen,  52  (1558)  semble;  Purrel  v.  Bradley,  Brownl. 
&  G.  192  (1603);  Dunwell  v.  Marshall,  2  Lev.  20  (1671);  Pinkney  v.  Rutland, 
2  Saund.  379  (1671) ;   Haywood  v.  Miller,  3  Hill  (N.  Y.)  90  (1S42).  Accord. 

In  such  a  case  the  person  having  the  possession  may  sue.  Bloss  v.  Holman, 
Owen,  52  (1558) ;  Robertson  v.  George,  7  N.  H.  306  (1834) ;  Jones  v.  Taylor, 
12  N.  C.  435  (1828) ;  Davis  v.  Clancy,  3  McCord  (S.  C.)  422  (1826) ;  McCol- 
man  v.  Wilkes,  3  Strob.  (S.  C.)  465,  51  Am.  Dec.  637  (1849).  See,  also,  28 
Am.  &  Eng.  Ency.  591. 


^6  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

DECLARATION   IN  TRESPASS  FOR   AN  ASSAULT,  BAT- 
TERY AND  FALSE  IMPRISONMENT. 

(Puterbaugh,  Common  Law  Pleading  and  Practice  [8th  Ed.]  p.  357.    Form  183.) 

In  the Court.  ^  ^  ^ 

Term,  19 — . 

State  of  Illinois, ) 
County  of  ,  J 

A,  B.,  plaintiff,  by  E.  F.,  his  attorney,  complains  of  C.  D.,  defend- 
ant, of  a  plea  of  trespass :  For  that  the  defendant,  on,  etc.,  with 
force  and  arms,  etc.,  in  the  county  aforesaid,  assaulted  the  plaintiff, 
and  seized  and  laid  hold  of  him,  and  with  violence  pulled  and  dragged 
him  about,  and  gave  and  struck  the  plaintiff  a  great  many  violent 
blows  and  strokes ;    and  also  then  and  there  forced  the  plaintiff  to 

go  from  out  a  certain  dwelling-house,  in  the  city  of  >,  in  the 

county  aforesaid,  into  the  public  street  there  and  compelled  him  to 
go  in  and  along  divers  public  streets,  to  a  certain  police  office  in 
the  said  city;  and  also  then  and  there  imprisoned  the  plaintiff,  and 
detained   him   in  prison   there,  without   any   reasonable  or  probable 

cause  whatsoever,  for  the  space  of then  next  following, 

contrary  to  the  laws  of  this  state,  and  against  the  will  of  the  plain- 
tiff; whereby  the  plaintiff  was  then  and  there  not  only  greatly  hurt, 
bruised  and  wounded,  but  was  exposed  to  public  disgrace,  and  injured 
in  his  credit  and  circumstances ;  and  other  wrongs  the  defendant  to 
him,  the  plaintiff,  then  and  there  did ;   against  the  peace  of  the  people 

of  this  state,  and  to  the  damage  of  the  plaintiff  of dollars, 

and  therefore  he  brings  his  suit. 


DECLARATION  IN  TRESPASS  FOR  INJURY 
TO  PERSONALTY. 

(2  Chitty,  Pleading  [13th  Am.  Ed.)  pp.  *846,  *860.) 

In  the  King's  Bench. 

On the day  of  — — — 

in Term,  1  Will.  4. 

,   (to  wit)  A.  B.  the  plaintiff  in  this  suit,  complains  of  C.  D. 

the  defendant  in  this  suit,  being  in  the  custody  of  the  marshal  of 
Marshalsea  of  our  said  lord  the  now  king,  before  the  king  himself, 
of  a  plea  of  trespass.  For  that  the  said  defendant,  on,  &c.  (day  of 
injury,  or  about  it,)  with  force  and  arms,  &c.  at,  &c.  (venue)  drove 
a  certain  cart,  with  great  force  and  violence,  upon  and  against  a  cer- 
tain horse  of  the  said  plaintiff,  of  great  value,  to  wit,  of  the  value 

of  i .  there  then  being,  and  thereby  then  and  there  with  one 

of  the  shafts,  and  with  other  parts  of  the  said  cart  of  the  said  de- 


Ch.  1)  TRESPASS  27 

fendant,  so  greatly  pierced,  cut,  hurt,  lacerated  and  wounded  the 
said  horse  of  the  said  plaintiff,  that  by  reason  thereof  the  said  horse 
being-  of  the  value  aforesaid,  afterwards,  to  wit,  on  the  day  and  year 
aforesaid,  died,  to  wit,  at,  &c.  (venue)  aforesaid. 

And  other  wrongs  to  the  said  plaintiff  then  and  there  did,  to  the 
great  damage  of  the  said  plaintiff,  and  against  the  peace  of  our  said 
lord  the  king.     Wherefore  the  said  plaintiff  saith,  that  he  is  injured, 

and  hath  sustained  damage  to  the  amount  of  i .,  and  therefore 

he  brings  his  suit,  &c 

Pledges,  &c. 


DECLARATION  IN  TRESPASS  FOR  INJURY  TO  REALTY. 

(2  Chitty,  Pleading  [13th  Am.  Ed.]  pp.  *S46,  *S63.) 

In  the  King's  Bench. 

On  the  day  of  

in  Term,   1   Will.  4. 

',  (to  wit)  A.  B.  the  plaintiff  in  this  suit,  complains  of  C.  D. 


the  defendant  in  this  suit,  being  in  the  custody  of  the  marshal  of 
Marshalsea  of  our  said  lord  the  now  king,  before  the  king  himself, 
of  a  plea  of  trespass.  For  that  the  said  defendant  on,  &c.  and  on 
divers  other  days  and  times,  between  that  day  and  the  day  of  ex- 
hibiting this  bill,  (or  if  in  C.  P.  "the  commencement  of  this  suit,") 
with  force  and  arms,  &c.  broke  and  entered  a  certain  dwelling-house 

of  the  said  plaintiff  situate  and  being  in  the  parish  of in  the 

county  of  ,  and  then  and  there  made  a  great  noise  and  dis- 
turbance therein,  and  stayed  and  continued  therein,  making  such 
noise  and  disturbance  for  a  long  space  of  time,  to  wit,  for  the  space 

of  days  then  next  following,  and  then  and  there  forced  and 

broke  open,  broke  to  pieces,  and  damaged  divers,  to  wit,  — doors 

of  the  said  plaintiff,  of  and  belonging  to  the  said  dwelling-house,  with 
the  appurtenances,  and  broke  to  pieces,  damaged,  and  spoiled  divers, 
to  wit,  locks,  staples,  and  hinges,  of  and  be- 
longing to  the  said  doors,  respectively,  and  wherewith  the  same  were 

then  fastened,  and  of  great  value,  to  wit,  of  the  value  of  i . 

And  also  during  the  time  aforesaid,  to  wit,  on  the  said  day 

of with  force  and  arms  &c.  seized  and  took  divers  goods  and 

chattels,  to  wit,  (describe  the  goods,  &c.  as  in  trover)  of  the  said 
plaintiff,  then  being  found  and  being  in  the  said  dwelling-house,  and 

being  of  great  value,  to  wit  of  the  value  of  £ .,  and  carried  away 

the  same,  and  converted  and  disposed  thereof  to  his  own  use.  By 
means  of  which  said  several  premises  the  said  plaintiff  and  his  family 
were,  during  all  the  time  aforesaid,  not  only  greatly  disturbed  and 
annoyed  in  the  peaceable  possession  of  the  said  dwelling-house  of 
the  said  plaintiff,  but  also  the  said  plaintiff  was,  during  all  that  time, 
hindered   and   prevented   from   carrying   on    and   transacting   therein 


28  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

his  lawful  and  necessary  affairs  and  business,  to  wit,  at,  &c.  (venue) 
aforesaid. 

And  other  wrongs  to  the  said  plaintiff  then  and  there  did,  to  the 
great  damage  of  the  said  plaintiff,  and  against  the  peace  of  our  said 
lord  the  king.     Wherefore  the  said  plaintiff  saith,  that  he  is  injured, 

and  hath  sustained  damage  to  the  amount  of  £ .,  and  therefore 

he  brings  his  suit,  &:c. 


HIGGINS  &  BOGUE  v.  HAYWARD. 

(Supreme  Court  of  Vermont,  1833.     5  Vt.  73.) 

Hutchison,  C.  J.^^  This  is  a  writ  of  error,  bringing  up  the  rec- 
ord of  an  action,  commenced  by  said  Hayward  against  the  plaintiffs 
in  error,  originally  commenced  before  a  Justice  of  the  Peace  and  ap- 
pealed to  the  County  Court.  We  should  suppose,  from  the  papers 
now  presented  to  us,  that  there  was  much  warm  litigation  in  the 
County  Court,  which  ended  in  the  plaintiffs  recovering  a  judgment. 
To  reverse  that  judgment  this  writ  of  error  is  brought.  In  nullo 
est  erratum  is  pleaded.  The  arguments  of  counsel  are  too  prolix  to 
be  published.  The  first  error,  insisted  upon  is  a  defect  ,in  the  dec- 
laration. The  action  was  trespass  for  taking  a  chaise  and  harness: 
and  the  defect  complained  of  as  error  is  the  omission  of  the  word 
force,  in  the  usual  expression,  with  force  and  arms.  There  exists, 
in  this  state,  neither  of  the  reasons,  which  ever  existed  in  England 
for  making  this  averment  in  a  civil  action  when  first  introduced  in 
England.  The  civil  action  was  also  a  criminal  process;  and,  if  the 
plaintiff  recovered  damages,  a  fine  was  assessed  to  the  king.  Hence 
the  vi  et  armis  and  contra  pacem  were  apt  expressions,,  in  reference 
to  one  part  of  the  judgment,  that  must  be  rendered  in  the  action, 
if  the  plaintiff  recovered  at  all.  When  the  Statute  5  W.  &  Mary, 
c.  12,  abolished  this  fine,  it  created  a  substitute,  by  requiring  the 
plaintiff,  on  signing  judgment,  to  pay  a  fixed  sum,  which  he  recovered 
back  in  his  judgment.  And  the  vi  et  armis  seems  as  necessary  to 
secure  this  substitute,  as  it  did  before  to  warrant  the  fine.  But,  by 
the  Statute  4  &  5  Anne,  c.  16,  the  omission  of.  vi  et  armis,  aiid  contra 
pacem,  is  aided  except  on  special  demurrer.  See  Gould's  Pleadings, 
pp.  188,  189.     *    *    * 

We  discover  no  error  in  this  record,  and  the  judgment  of  the  County 
Court  is  affirmed,  with  additional  damages  and  costs.     *    *    *  «« 

2  7  Part  of  the  opinion  omitted. 

2  8  Parker  v.  Bailey.  4  D.  &  R.  215  (1824).  Accord.  Taylor  v.  Welsted, 
Cro.  Jac.  443  (1G16).  Contra.    See,  further,  21  PI.  &  Pr.  817. 


Ch.  1)  TRESPASS  29 

HIGHT  V.  NAYLOR. 

(Appellate  Court  of  Illinois,  1899.     86  111.  App.  508.) 

Mr.  Justice  Burroughs  ^"  delivered  the  opinion  of  the  court. 

This  was  an  action  of  trespass  by  the  appellee  against  the  appel- 
lant, tried  by  jury  in  the  Circuit  Court  of  Christian  County,  where  a 
judgment  was  rendered  against  the  appellant  for  $300  damages  and 
costs.  To  reverse  that  judgment  the  appellant  prosecutes  an  appeal 
to  this  court,  and  urges  as  grounds  therefor  that  the  court  admitted 
improper  and  rejected  proper  evidence;  gave  improper  and  refused 
proper  instructions;  the  verdict  is  contrary  to  the  evidence,  and  the 
damages  are  excessive. 

While  the  declaration  as  first  filed  contained  four  counts,  the  first 
and  second  were  dismissed  and  the  trial  had  on  the  third  and  fourth, 
both  of  which  charged  trespass  and  imprisonment  against  the  will 
of  the  plaintiff  and  without  reasonable  or  probable  cause.  The  de- 
fendant filed  a  plea  of  not  guilty,  and  two  special  pleas,  in  both  of 
which  he  set  up  that  he  had  probable  cause.  The  plaintiff  joined 
issue  upon  the  plea  of  not  guilty,  demurred  to  the  two  special  pleas, 
and  the  court  overruled  it.  The  plaintiff  did  not  reply  to  the  special 
pleas,  and  the  trial  was  had  as  though  they  had  been  traversed. 

The  bill  of  exceptions  shows  that  the  appellant  was  a  witness  in 
his  own  behalf,  and  when  testifying  admitted  that  he  was  not  an 
officer,  yet,  against  plaintiff's  will,  had  arrested  him  while  on  the  street 
of  the  village  of  Assumption ;  that  at  the  time  he  accused  him  of  steal- 
ing his  bicycle,  worth  $50 ;  and  that  after  he  had  arrested  the  plain- 
tiff, he  detained  him  some  five  minutes  himself,  and  then  turned  him 
over  to  the  night  watchman  of  the  village,  with  directions  to  hold  him 
under  arrest  until  the  defendant  found  his  bicycle;  that  the  night 
watchman  kept  the  plaintiff  upon  the  street  for  some  forty-five  min- 
utes, when  defendant  directed  him  to  release  the  plaintiff,  which  he 
did ;  that  after  he  had  turned  the  plaintiff  over  to  the  night  watchman 
defendant  found  that  his  bicycle  had  not  been  stolen,  but  only  re- 
moved by  a  friend  from  the  side  of  the  street  in  front  of  the  de- 
fendant's place  of  business,  where  he  had  left  it  a  short  time  before. 

With  these  facts  admitted  there  is  no  force  in  appellant's  insistence 
that  the  verdict  is  contrary  to  the  evidence,  because  confessedly  the 
defendant,  not  being  an  officer  with  process,  had  illegally  arrested 
and  detained  the  plaintiff  against  his  will  when  no  criminal  offense 
had  been  committed  or  attempted  by  the  plaintiff  in  the  presence  of 
the  defendant,  which  facts  established  the  plaintiff's  cause  of  action 
and  entitled  him  to  a  verdict.  Sundmacher  v.  Block,  39  111.  App. 
553;  Dodds  et  al.  v.  Board,  43  111.  95;  and  Kindred  v.  Stitt  et  al.. 
51  111.  401. 

2!>  Statement  of  facts  and  part  of  the  opinion  omitted. 


30  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

Want  of  reasonable  or  probable  cause  not  being  an  essential  ele- 
ment of  a  cause  of  action  for  trespass  and  illegal  imprisonment  with- 
out process,  the  averment  in  both  counts,  that  the  trespass  and  im- 
prisonment complained  of  was  without  reasonable  or  probable  cause, 
was  mere  surplusage  and  could  be  disregarded.  Johnson  v.  Von  Ket- 
tler,  84  111.  315;  Sundmacher  v.  Block,  supra;  Barnes  v.  Northern 
Trust  Co.,  169  111.  118,  48  N.  E.  31 ;  Burnap  v.  Wight,  14  111.  301 ; 
and  Higgins  v.  Halligan,  46  111.  173. 

The  two  special  pleas,  setting  up  that  there  was  reasonable  and 
probable  cause,  were  not  good  pleas  in  bar  of  the  action  set  out  in 
either  count  of  the  declaration,  and  the  court  should  have  sustained 
the  demurrer  to  them  for  that  reason.     *     *     * 

After  a  careful  inspection  of  the  entire  record,  we  find  that  substan- 
tial justice  was  done  the  parties  thereto  by  the  judgment  rendered 
in  the  Circuit  Court  of  Christian  County;   hence  we  affirm  it 

Judgment  affirmed.^'* 


ROCKER  V.  PERKINS  et  al. 
(Supreme  Court  of  District  of  Columbia,  1888.     6  Mackey,  379.) 

This  was  an  action  of  trespass.  The  declaration  alleged  that  the 
defendants  with  force  and  arms,  etc.,  "wrongfully  seized  a  certain 
colt  of  the  plaintiff  of  the  value  of  $150,  and  then  and  there  carried 
away  the  same  and  converted  and  disposed  of  the  same  to  their  own 
use,"  to  the  damage  of  the  plaintiff  $250. 

On  cross-examination  the  plaintiff  was  asked  whether  he  had  not 
sold,  prior  to  the  29th  of  November,  to  one  Theodore  PHtt,  certain 
of  his  goods  and  chattels  and  received  a  consideration  therefor.  He 
replied  that  he  had  executed  such  a  bill  of  sale,  but  that  it  was  mere- 
ly as  security  for  a  debt  of  $500  due  Mr.  Plitt.  That  possession  of 
the  property  had  not  been  transferred  to  Mr,  Plitt,  but  that  he  had 
been  permitted  by  said  Plitt  to  retain  said  goods  and  chattels,  includ- 
ing the  colt  in  question,  with  the  understanding  that  if  he  should  fail 
to  pay  said  debt  he  (Plitt)  might  take  possession  of  the  said  colt  and 
the  other  goods  and  chattels  mentioned  in  the  bill  of  sale.  Being 
asked  if  he  had  not  given  a  receipt  for  said  $500,  he  replied  that  he 
had,  and  thereupon  he  produced  the  same,  which  is  as  follows: 

"Received,  Washington  City,  D.  C,  November  28th,  1884,  of  Mr. 

3  0  Fuqua  v.  Gambill,  140  Ala.  464.  37  South.  235  (1903)  semble ;  Johnson  v. 
Von  Kettler.  84  111.  315,  318  (1876);  Markey  v.  Griffin,  109  111.  App.  212,  219 
(1903) ;  Lewin  v.  Uzuber,  65  Md.  341,  348,  4  Atl.  285  (1880)  semble ;  Herzog 
V.  Graham,  9  Lea  (Tenn.)  152  (1882)  semble.  Accord. 

Malice  need  not  be  alleged.  Fuqua  v.  Gambill,  140  Ala.  464,  37  South.  235 
(1903)  semble;  Lewin  v.  Uzuber,  65  Md.  341,  348,  4  Atl.  285  (1886)  semble; 
McCarthy  v.  De  Armit,  99  Pa.  63,  70  (1881);  Hobbs  v.  Ray,  18  R.  I.  84, 
25  Atl.  694  (1892)  semble. 

In  Force  v.  Probasco,  43  N.  J.  Law,  539.  541  (1881),  it  is  said  that  the 
ileelaration  must  allege  that  the  defendants  caused  the  arrest  unlawfully. 


Ch.  1)  TRESPASS  31 

Theodore  Plitt,  $500  in  full  of  all  the  goods  and  chattels  mentioned 
in  a  certain  bill  of  sale  made  by  me  and  wife  this  date. 

"William  Rocker. 
"Witnesses : 

"Lewis  Keese. 
"J.  H.  Salzkorn."  " 
Mr.  Chief  Justice  Bingham  delivered  the  opinion  of  the  court: 
The  only  question  before  us  is  whether  or  not  in  the  case  of  a  sale 
such  as  was  shown  to  have  been  made  here,  the  plaintiff  parted  with 
his  property  in  the  colt  in  such  a  manner  as  that  the  allegation  in 
the  declaration  that  the  colt  was  the  colt  of  the  plaintiff  is  supported 
by  the  evidence.  In  other  words,  if  the  plaintiff's  possession  was  by 
virtue  of  his  arrangement  with  Plitt,  that  he  should  keep  the  colt 
until  the  maturity  of  the  debt,  when,  if  he  failed  to  pay,  Plitt  was 
to  take  possession,  were  these  facts  sufficient  to  support  the  averment 
of  ownership  in  the  declaration?  The  position  of  the  defense  is  that 
if  the  plaintiff  had  only  a  special  ownership  of  the  colt,  such  as  the 
right  of  possession  under  this  agreement  with  Plitt,  then  in  order  to 
recover  he  must  allege  such  ownership  in  his  declaration,  and  prove 
it  upon  the  trial.  We  are  satisfied  that  there  is  no  authority  sustaining 
that  view  of  the  law.  It  is  a  well  settled  rule  of  pleading  that  it  is 
sufficient  in  this  class  of  actions  simply  to  allege  ownership  in  the 
plaintiff,^^  and  then  any  proof  of  ownership  which  will  support  the 
action  of  trespass  will  be  sufficient  under  such  an  allegation  to  en- 
title him  to  recover.^^  The  mere  right  of  possession  is  sufficient 
to  maintain  the  action  against  every  one  but  the  owner,  and  the  al- 
legation that  the  plaintiff  is  the  owner  is  well  made  out  by  merely 
proving  his  right  of  possession. 

The  judgment  of  the  court  below  is  reversed,  and  a  new  trial  or- 
dered. 

31  Statement  of  facts  abridged. 

82  Finch  V.  Alston,  2  Stew.  &  P.  (Ala.)  83,  23  Am.  Dec.  299  (1832) ;  Heath 
V.  Conway,  1  Bibb  (Ky.)  398  (1809:  "his"  goods  held  sufficient);  Smith 
V.  Hancock,  4  Bibb  (Ky.)  222  (1815);  Stanley  v.  Gaylord,  10  Mete.  (Mass.) 
82  (1845) ;  Gray  v.  Cooper,  Wright  (Ohio)  500  (1834) ;  Donaghe  v.  Roude- 
boush,  4  Munf.  (Va.)  251  (1814).  Accord. 

In  Hite  v.  Long,  6  Rand.  (Ya.)  457,  464  (1828),  it  was  held  that  an  allega- 
tion of  possession  by  the  plaintiff  is  bad. 

83  Willamore  v.  Bamford.  2  Bulstr.  288  (1615 :  a  specific  title  alleged  will 
make  any  evidence  sufficient  to  support  the  action  admissible) ;  Ware  v. 
Hirsch,  19  111.  App.  274,  277  (1885)  semble;  Smith  v.  Hancock,  4  Bibb  (Ky.) 
222  (1815) ;    Outcalt  v.  Darling,  25  N.  J.  Law,  443  (1856)  semJjle.  Accord. 


32  PLEADINGS   IN   TORT  ACTIONS  (Part    1 


SECTION  3.— DEFENSES. 


PLEAS  OF  THE  GENERAL  ISSUE  AND  SELF-DEFENSE  IN 

TRESPASS. 

(Puterbaugh,   Common  Law  Pleading  and  Practice  [Sth  Ed.]  367.) 

In  the Court.  Term,  19-. 

C.  D.^ 

ats.     >■  Trespass. 
A.  B.J 

And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends  the 
force  and  injury,  when,  etc.,  and  sayo  that  he  is  not  guilty  of  the 
said  supposed  trespasses  above  laid  to  his  charge,  or  any  or  either 
of  them,  in  manner  and  form  as  the  plaintiff  has  above  thereof  com- 
plained against  him:  And  of  this  the  defendant  puts  himself  upon 
the  country,  etc. 

And  for  a  further  plea  in  this  behalf,  the  defendant  says  that  the 
plaintiff  ought  not  to  have  his  aforesaid  action  against  'him,  the  de- 
fendant, because  he  says,  that  the  plaintiff  just  before  the  said  time 
when,  etc.,  in  the  county  aforesaid,  made  an  assault  upon  the  defend- 
ant, and  would  then  and  there  have  beaten,  bruised  and  ill-treated 
him,  if  he  had  not  immediately  defended  himself  against  the  plain- 
tiff; wherefore  the  defendant  did  then  and  there  defend  himself 
against  the  plaintiff,  as  he  lawfully  might  for  the  cause  aforesaid, 
and  in  so  doing  did  commit  the  supposed  trespasses  in  the  said  declara- 
tion mentioned :  And  so  the  defendant  says,  that  if  any  hurt  or  dam- 
age then  and  there  happened  to  the  plaintiff,  the  same  was  occasioned 
by  the  said  assault  so  made  by  the  plaintiff  upon  him,  the  defendant, 
and  in  his  necessary  defense  of  himself  against  the  plaintiff.  And 
this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judgment 
if  the  plaintiff  ought  to  have  his  aforesaid  action  against  him,  etc. 


PLEA  OF  LIBERUM  TENEMENTUM  IN  TRESPASS. 

(Puterbaugh,  Common  Law  Pleading  and  Practice  [8tli  Ed.]  381.) 

In  the Court.  , ^^^^^  ^^_ 

C.  D.-l 
ats.    l  Trespass. 
A.  B.J 

And  the  defendant,  by  E.  F.,  his  attorney,  comes  and  defends  the 
force  and  injury,  when,  etc.,  and  says  that  the  plaintiff  ought  not  to 


Ch.  1)  TRESPASS  33 

have  his  aforesaid  action  against  him,  the  defendant,  because  he 
says,  that  the  close  in  the  said  declaration  mentioned,  and  in  which, 
etc.,  now  is,  and  at  the  said  time  (or  "several  times")  when,  etc.,  was 
the  close,  soil  and  freehold  of  the  defendant :  wherefore  the  defendant 
at  the  said  time  (or  "several  times")  when,  etc.,  committed  the  several 
supposed  trespasses  in  the  said  declaration  mentioned,  in  the  said 
close  in  which,  etc.,  as  he  lawfully  might  for  the  cause  aforesaid: 
And  this  the  defendant  is  ready  to  verify;  wherefore  he  prays  judg- 
ment, etc. 


HERRICK  V.   MANLY. 
(Supreme  Court  of  New  York,  1803.    1  Caines,  253.) 

This  was  an  action  of  trespass  for  false  imprisonment.  The  de- 
fendant pleaded  not  guilty.  The  cause  was  tried  on  the  twenty-fifth 
day  of  May,  one  thousand  eight  hundred  and  three,  before  Mr.  Jus- 
tice Kent,  at  the  Rensselear  circuit.  The  plaintiff  called  Samuel  Haw- 
ley,  a  constable,  and  proved  by  him,  that  he  arrested  and  imprisoned 
the  plaintiff  by  order  of  the  defendant.  The  counsel  for  the  defend- 
ant then  asked  the  witness  by  whose  authority  he  made  such  arrest 
and  imprisonment?  whether  it  was  not  by  virtue  of  an  execution  is- 
sued by  a  justice  of  the  peace,  delivered  to  him  as  constable,  against 
the  now  plaintiff,  in  favor  of  the  now  defendant?  The  judge  over- 
ruled these  questions,  being  of  opinion,  that  it  was  sufficient  for 
the  plaintiff  to  prove  that  Hawley  imprisoned  him  by  order  of  the 
defendant;  and  that  it  was  not  competent  for  the  defendant  to  ex- 
plain by  the  same,  or  any  other  witness,  either  the  cause  of  the  ar- 
rest, or  the  authority  by  which  it  was  made. 

The  defendant's  counsel  then  stated,  and  offered  to  prove,  that 
Manly  recovered  judgment  against  Herrick  before  a  justice;  that 
execution  issued  against  him  on  that  judgment,  and  was  delivered 
by  Manly  to  Hawley,  the  constable ;  that  Manly  requested  Hawley 
to  imprison  Herrick  on  the  writ  thus  delivered,  which  he  did;  and 
that  Herrick  was  liable  to  be  imprisoned  on  the  execution. 

These  facts,  it  was  contended,  might  properly  be  given  in  evidence 
under  the  general  issue,  inasmuch  as  the  defendant  came  within  the 
statute  for  the  more  easy  pleading  in  suits,  &c.  The  judge  overruled 
the  testimony  offered,  and  a  verdict  was  found  for  the  plaintiff  for 
fifty  dollars  damages. 

The  case  now  came  before  the  court  on  a  motion  for  a  new  trial. 

Lewis,  Ch.  J.,  delivered  the  opinion  of  the  court.  An  application 
is  now  made  for  a  venire  de  novo,  on  the  ground  of  misdirection  on 
the  second  point  of  defence. 

The  defendant  having  been  the  mere  bearer  of  the  writ  (which 
«vas  an  execution  in  his  own  suit)  from  the  justice  to  the  constable, 
Whit.C.L.Pl.— 3 


34  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

can  neither  be  considered  as  a  bailiff,  or  deputy,  within  the  letter  or 
spirit  of  the  statute,^*  and,  of  course,  not  entitled,  under  the  general 
issue,  to  give  the  special  matter  in  evidence,  by  way  of  justification. 
The  testimony,  as  it  was  offered,  was,  therefore,  properly  rejected. ^^ 
There  is,  however,  a  point  of  view,  under  which,  had  it  been  presented, 
it  would  have  been  proper,  and  ought  to  have  been  admitted.  The 
only  ground  on  which  the  liability  of  the  defendant  is  contended  for 
is  his  having  directed  the  officer,  when  he  delivered  him  the  process, 
to  arrest  and  imprison  the  plaintiff.  If,  then,  it  could  have  been  shown 
that  the  arrest  and  imprisonment  was  not  a  consequence  of  his  in- 
structions to  the  officer,  but  in  pursuance  of  a  competent  and  para- 
mount authority,  his  plea  would  have  been  substantiated,  and  a  verdict 
would  have  passed  for  him.  For  if  the  arrest  and  imprisonment  was 
the  effect  of  any  other  cause  than  the  instructions  he  gave  the  offi- 
cer, he  was,  emphatically,  not  guilty,  and  it  was  not  a  case  for  justi- 
fication. We  are,  therefore,  of  opinion,  the  verdict  be  set  aside;  but 
it  must  be  on  payment  of  costs,  as  no  misdirection  appears.  See 
Schermerhorn  v.  Tripp,  2  Caines,  108,  note. 
New  trial,  on  payment  of  costs. ^® 


BOSS   V.  LITTON. 
(Court  of  King's  Bench,  1832.    5  Car.  &  P.  407.) 

Trespass  for  injuring  the  plaintiff,  by  driving  a  cart  against  him. 
Plea — not  guilty. 

It  appeared  that  the  plaintiff  was  walking  in  the  carriage  way  in 
the  neighbourhood  of  Islington,  about  ten  o'clock  in  the  evening,  when 
the  defendant,  who  was  driving  a  taxed  cart,  turned  out  from  be- 
hind a  post  chaise  and  drove  against  the  plaintiff,  and  knocked  him 
down.  A  policeman,  who  was  called  as  a  witness,  stated,  that  he  never 
walked  upon  the  footpath,  it  was  in  so  bad  a  state.^^     *     *     * 

3  4  In  some  jurisdictions  statutes  tiave  been  passed  permitting  an  officer  or 
certain  officers  to  prove  any  defense  under  the  general  issue.  The  English 
statutes  are  stated  in  1  Chitty,  Pleading  (16th  Am.  Ed.)  *546.  For  similar 
American  statutes,  see  Bradley  v.  Powers,  7  Cow.  (N.  Y.)  330  (1S27) ;  Traylor 
V.  McKeown,  12  Rich.  (S.  C.)  2.11  (1839).  Counsel  in  the  principal  case  quotes 
the  statute  of  New  York  as  follows :  "If  any  action  upon  the  case,  trespass, 
battery,  or  false  imprisonment,  be  brought  against  any  sheriff,  etc.,  or  any 
other  person  who  in  their  aid  or  assistance,  or  by  commandment  do  any- 
thing, etc.,  it  shall  be  lawful  for  every  person  aforesaid  to  plead  thereunto 
the  general  issue,  and  give  the  special  matter  in  evidence."  Rev.  Laws  1819, 
p.  234. 

8  5  Whether  evidence  of  a  justification  under  process  is  admissible  under 
the  general  issue  is  dealt  with  in  later  cases. 

36  Manchester  v.  Vale,  1  Saund.  27  (16G6:  trespass  to  land);  Gibbons  v. 
Pepper,  1  Ld.  Ray.  38  (1G95 :  trespass  to  the  person) ;  Goodman  v.  Taylor,  5 
C.  &  P.  410  (1832 :  trespass  to  goods) ;  Crookshank  v.  Kellogg,  8  Blackf.  (Ind.) 
256  (1846) ;    Fuller  v.  Rounceville,  29  N.  H.  554  (1854)  semble.  Accord. 

3  7  Part  of  the  case  is  omitted. 


Ch.  1)  TRESPASS  35 

Thesiger,  for  the  defendant,  said  that  he  was  in  a  condition  to 
prove  that  the  injury  arose  from  accident. 

Comyn,  for  the  plaintiff,  replied,  that,  as  it  was  an  action  of  trespass, 
with  only  the  general  issue  pleaded,  such  evidence  could  not  be  re- 
ceived. He  cited  Knapp  v.  Salsbury  [3  Camp.  500],  in  which  Lord 
Ellenborough  said:  "This  is  an  action  of  trespass;  if  what  happen- 
ed arose  from  inevitable  accident,  or  from  the  negligence  of  the 
plaintiff,  to  be  sure  the  defendant  is  not  liable ;  but  as  he  in  fact  did 
run  against  the  chaise  and  kill  the  horse,  he  committed  the  acts  stated 
in  the  declaration,  and  he  ought  to  have  put  upon  the  record  any  jus- 
tification he  may  have  had  for  doing  so." 

Thesiger  referred  to  a  case  of  Vanderplank  v.  Miller  [1  M.  &  M. 
169],  as  an  authority  in  his  favour. 

But  it  turned  out,  on  reference,  that  that  was  an  action  on  the  case, 
and  Denman,  C.  J.,  said:  "I  take  Mr.  Comyn's  law  to  be  quite  cor- 
rect, that  the  only  question  is,  did  the  defendant  strike  the  plaintiff 
by  driving  his  cart  against  him?" 

Thesiger  then  referred  to  the  case  of  Gibbon  v.  Pepper  [2  Salk. 
637],  in  which  a  special  plea  was  demurred  to,  and  the  Court  held 
that  it  was  bad  for  want  of  a  confession,  but  said  that  the  defend- 
ant might  have  proved  the  facts  it  contained  under  the  general  is- 
sue. 

Denman,  C.  J.  I  do  not  see  that  that  case  is  at  variance  with 
the  case  cited  for  the  plaintiff  of  Knapp  v.  Salsbury,  as  the  facts 
pleaded  went  to  shew  that  the  horse  ran  away  with  the  defendant, 
and  therefore  it  would  not  -be  his  act  which  produced  the  injury.  I 
think,  upon  the  evidence  produced,  which  it  seems  impossible  to  con- 
tradict, that  there  is  no  defence  on  the  general  issue.^^     *     ♦     * 

Verdict  for  the  plaintiff — Damages  £20. 


DODD  v.  KYFFIN. 

(Court  of  King's  Bench,  1797.    7  Durn.  &  E.  354.) 

■  Trespass  for  breaking  and  entering  the  plaintiff's  close  called  the 
Chapelfield,  on  the  30th  March,  1793.  Plea,  the  general  issue.  At 
the  trial  before  the  Chief  Justice  of  Chester  the  plaintiff  gave  evi- 
dence of  his  being  in  possession  of  the  close  at  the  time  of  the  tres- 
pass alleged,  by  proof  of  different  acts  of  husbandry  exercised  by  him 
therein  down  to  that  period  and  afterwards.  It  appeared  that  the  close 
belonged  to  a  chapel,  of  which  Mr.  Evans  had  been  minister  for  some 
years,  till  his  death  in  December,  1792,  during  which  time  it  was  held 
under  him  by  one  G.  Dodd.  Before  the  day  of  the  alleged  trespass, 
Mr.  Price  had  succeeded  as  minister  of  the  chapel ;    and  the  defend- 

88  Hussey  v.  Kiug,  83  Me.  508,  571,  22  Atl.  476  (1891)  semble;    Wright  v. 
Stepbauus,  2  Tyler  (Vt.)  SO  (1802)  semble.  Accord. 


36  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

ant  offered  to  call  a  witness  to  prove,  that  previous  to  that  day,  Price 
had  verbally  demised  the  close  to  him,  the  defendant.  The  Chief 
Justice  said  he  would  receive  any  evidence  to  shew  the  actual  pos- 
session out  of  the  plaintiff  at  the  time  of  the  supposed  trespass,  but 
he  thought  that  under  the  plea  of  not  guilty  he  could  not  receive  any 
evidence  of  title  or  of  the  right  of  possession  being  in  the  defendant; 
nothing  being  in  issue  but  the  fact  of  the  trespass  on  the  actual  pos- 
session of  the  plaintiff.  Some  evidence  was  afterwards  given  to  shew 
a  possession  in  Price  at  that  time;  and  the  Chief  Justice  left  the  whole 
to  the  jury  to  find  their  verdict  according  as  they  believed  that  the 
possession  was  in  or  out  of  the  plaintiff  at  that  time ;  and  they  found 
a  verdict  for  the  plaintiff. 

Manley  in  the  last  term  obtained  a  rule  to  shew  cause  why  the  ver- 
dict should  not  be  set  aside,  because  the  evidence  offered  had  been  re- 
jected; and  also  because,  admitting  the  possession  to  be  dubious,  tres- 
pass would  not  lie. 

Leycester  and  Hinchliffe  now  shewed  cause  against  the  rule,  and 
contended  that  the  title  could  not  be  given  in  evidence  on  the  general 
issue  in  trespass,  but  if  meant  to  be  insisted  on  it  ought  to  have  been 
pleaded.  They  admitted  that  a  lease  from  a  third  person  might  be 
given  in  evidence,  to  disprove  the  fact  of  the  plaintiff/s  possession; 
but  the  evidence  in  question  was  not  offered  on  that  ground.  They 
mentioned  Dove  v.  Smith,  6  Mod.  153,  where  Holt,  Ch.  J.,  said  "upon 
not  guilty  the  defendant  could  not  give  any  matter  of  right  in  evi- 
dence." Bull.  Ni.  Pri.  90,  and  Bartholomew  v.  Ireland,  Andr.  108,  in 
which  latter  they  observed  there  was  a  plea  of  liberum  tenementum, 
and  consequently  what  was  said  as  to  giving  such  evidence  on  the  gen- 
eral issue,  was  extrajudicial.    But 

The  Court  were  clearly  of  opinion  that  the  defendant  ought  to  have 
been  permitted  to  give  evidence  of  title  and  of  right  to  possession  un- 
der the  general  issue ;  and  therefore  they  made  the 

Rule  absolute.^® 

30  Finch  v.  Alston,  2  Stew.  &  P.  (Ala.)  83,  23  Am.  Dec.  299  (1832)  semble; 
White  V.  Naernp,  57  111.  App.  114,  118  (1894);  Rawson  v.  Morse,  4  Pick. 
(Mass.)  127  (1826);  Fuller  v.  Rounceville.  29  N.  H.  554  (1854);  U.  S.  Pipe 
Line  Co.  v.  Railioad  Co.,  62  N.  J.  Law,  254,  272,  41  Atl.  759,  42  L.  R.  A.  572 
(1898) ;  Saunders  v.  Wilson,  15  Wend.  (N.  Y.)  338  (1836)  semble ;  Jones  v.  Mul- 
drow,  1  Rice  (S.  C.)  64,  72  (1838);  Dickinson  v.  Mankiu,  61  W.  Va.  429,  434.  56 
S.  E.  824  (1906).  Accord.  Manchester  v.  Vale,  1  Saund.  27  (1666)  semble; 
Harris  v.  Miner,  28  111.  135  (1862)  semble ;  Stone  v.  Hubbard,  17  Pick.  (Mass.) 
217  (1835) ;  Ostrom  v.  Potter,  104  Mich.  115,  62  N.  W.  170  (1895) ;  Sayles  v. 
Mitchell,  22  R.  I.  238,  47  Atl.  320  (1900).  Contra.  For  further  citations  see 
21  PI.  &  Pr.  834,  835. 

The  possession  of  the  plaintiff  is  denied  by  not  guilty.  Holler  v.  Bush. 
1  Salk.  394  (1697) ;  Ebersol  v.  Trainor,  81  111.  App.  645  (1898) ;  Alliance  Co.  v. 
Nettleton  Co.,  74  Miss.  584,  593,  21  South.  396,  36  L.  R.  A.  155,  60  Am.  St  Rep. 
531  (1896) ;  Underwood  v.  Campbell,  13  Wend.  (N.  Y.)  78  (1834). 


Ch.  1)  TRESPASS  87 

FISHER  V.  MORRIS. 

(Supreme  Court  of  Pennsylvania,   1839.     5   Whart.  358.) 

This  was  an  action  of  trespass  quare  clausum  fregit,  &c.  brought 
in  this  court  to  December  Term,  1838,  by  James  C,  Fisher  against 
Samuel  B.  Morris. 

The  plaintiff  declared  for  a  trespass  to  his  close,  situate  in  the  town- 
ship of  Moyamensing  and  county  of  Philadelphia;  particularly  de- 
scribing it  by  courses  and  distances,  metes  and  bounds,  &c. 

The  defendant  pleaded  not  guilty,  and  liberum  tenementum. 

The  plaintiff  joined  issue  on  the  first  plea,  and  demurred  specially  to 
the  second — assigning  for  causes  of  demurrer  that  the  plea  "amounts 
to  the  general  issue,  and  tends  to  great  and  unnecessary  prolixity  of 
pleading;  and  also  for  that  the  said  plea  is  argumentative  in  its  nature, 
by  reason  of  its  affirming  that  the  title  to  the  close  mentioned  and  de- 
scribed in  the  said  declaration,  is  in  the  said  defendant,  whereas  the 
said  declaration  avers  the  title'  to  the  said  close  to  be  in  the  plain- 
tiff," &c. 

Sergeant_,  J.  The  action  of  trespass  quare  clausum  fregit,  is  found- 
ed on  possession.  To  sustain  it,  the  plaintiff  must  show  that  he  was 
in  the  possession  in  fact  of  the  premises  at  the  time  the  injuries  com- 
plained of  were  committed.  The  possession  is  a  sufficient  prima  facie 
title  for  the  plaintiff.  His  declaration  technically  states  it  to  be  his 
close,  without  more — not  saying  whether  it  is  his  by  title,  or  that  he 
was  seised  in  fee  simple,  or,  for  life,  or  possessed  of  an  estate  for 
years,  or  vesturae  terras,  or  other  estate.  In  law,  he  who  has  the  ac- 
tual possession  of  land,  has  the  right  against  all  but  such  as  can  show 
a  right  of  pqssession  against  him.  He  who  has  the  complete  right  of 
possession,  ma}^  enter  on  the  soil.  His  superior  right  is,  in  a  civil 
suit,  a  justification  of  such  entry.  If  the  entry  and  detainer  are  peace- 
able, it  is  so  in  all  suits.  If  forcible,  he  is  liable  to  a  criminal  proceed- 
ing. 

The  plea  of  liberum  tenementum,  in  trespass  quare  clausum  fregit, 
is  the  mode  of  setting  up  this  right  of  possession,  by  way  of  justifica- 
tion for  the  entry  and  acts  done.  It  confesses  all  that  is  contained  in 
the  narr.,  viz.,  that  the  plaintiff  had  the  possession,  and  that  the  acts 
set  forth  were  committed  by  the  defendant,  but  avoids  the  complaint 
by  alleging  a  right  to  enter,  and  do  the  acts  complained  of.  It  does 
not  deny  the  allegations  of  the  plaintiff.  It  does  not  put  them  in  issue. 
It  sets  up  a  new  and  distinct  ground  of  defence;  and  if  issue  be  taken 
on  it  by  the  plaintiff,  this  plea  alone  would  throw  on  the  defendant 
the  burden  of  proof :  and  the  narr.  would  be  taken  for  granted  as  ad- 
mitted. This  distinguishes  the  present  case  altogether  from  that  of  Mc- 
Bride  v.  Duncan,  1  Whart.  269,  where  the  action  was  trespass  against 
personal  property,  and  the  pleas  put  in  issue  the  plaintiff's  property,  and 
the  other  allegations  of  the  declaration,  and  were  in  the  end  no  more 


38  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

than  saying  that  the  defendants  were  not  guilty,  though  in  the  body 
of  the  pleas  they  gave  the  reasons  why  they  were  not  guilty ;  and  to 
avoid  the  rule  that  prohibits  pleading  specially,  what  amounts  to  the 
general  issue,  and  to  take  the  case  from  the  jury,  the  defendants  used 
the  device  of  giving  colour  by  suggesting  a  bad  title  in  the  plaintiffs. 
Here  nothing  of  the  kind  is  done. 

It  is  true  it  has  been  frequently  decided  that  the  defence  set  up  by 
this  plea  may  be  given  in  evidence  on  the  general  issue  of  not  guilty. 
Dodd  V.  Kyffin,  7  Term  Rep.  354;  Argent  v.  Durrant,  8  Term  Rep. 
403 ;  Gilb.  Ev.  258 ;  1  Leon.  301 ;  Andrews,  108.  But  it  does  not  fol- 
low that  because  it  may  be  given  in  evidence  under  the  general  issue, 
it  cannot  be  pleaded  specially.  In  this  respect  it  resembles  the  pleas  of 
release,  payment  and  others  which  are  admissible  on  non  assumpsit, 
but  yet  do  not  amount  to  non  assumpsit,  and  may  be  specially  pleaded. 
The  practice  has  been  in  Pennsylvania,  to  plead  this  plea  of  liberum 
tenementum,  usually  with  that  of  not  guilty;  not  as  the  common  bar, 
in  order  to  compel  a  new  assignment  of  the  locus  in  quo,  but  as  a  sub- 
stantive plea;  and  the  English  precedents  furnish  numerous  instances 
of  such  pleas. 

There  are  no  doubt  some  difficulties  attending  this  plea  which  are 
pointed  out  by  Chief  Justice  Willes  in  Lambert  v,  Str.other,  Willes 
Rep.  218,  such  as  that  it  is  not  a  full  bar  to  the  action ;  for  though  the 
place  in  question  be  the  plaintiff's  freehold,  the  plaintiff  may  have  a 
good  cause  of  action,  as  if  he  hold  by  lease  under  the  defendant;  or 
even  though  he  had  no  right  at  all,  if  he  has  been  in  quiet  possession 
a  great  while,  &c.  But  he  concludes  that  these  pleas  have  long  obtained, 
and  it  would  be  too  much  to  overrule  them  generally,  though  in  some 
cases  they  ought  not  to  be  held  good  pleas.  The  learned  editor  of 
these  reports,  in  a  note  mentions  a  case  in  which  they,  have  been  de- 
cided not  to  be  good ;  but  that  was  a  trespass  for  taking  chattels,  where 
the  ground  of  the  writ  is  different.  There  is  no  reported  case  of  quare 
clausum  f  regit  in  which  the  plea  of  liberum  tenementum  has  been  over- 
ruled. It  is  constantly  recognised  in  ancient  and  modern  books  of 
precedents  and  in  the  elementary  treatises;  and  that  it  is  traversable, 
is  admitted  in  Lambert  v.  Strother. 

Perhaps  the  meaning  and  operation  of  the  plea  have  undergone  some 
alteration  by  the  lapse  of  time  and  the  changes  of  the  system  of  society. 
For  Sir  Wm.  Blackstone  says,  that  an  estate  of  freehold,  liberum  tene- 
mentum, or  frank-tenement,  is  defined  by  Britton  to  be  "the  possession 
of  the  soil  by  a  freeman."  And  St.  Germyn  tells  us,  "that  the  posses- 
sion of  the  land  is  called  in  the  law  of  England  the  frank-tenement  or 
freehold."  Such  estate  therefore  as  requires  actual  possession  of  the 
land,  is,  legally  speaking,  freehold,  &c.  2  Bl.  Com.  104.  In  this  sense, 
the  plea  sets  up  possession  as  well  as  title.  But  the  word  freehold  is 
now  applied  to  the  quantity  of  the  estate;  and  the  operation  of  the 
plea  has  been  modified  accordingly.  For  says  Stephen  in  his  Treatise 
on  Pleading,  335,  this  allegation  of  a  general  freehold  title,  will  be  sus- 


Ch.  1)  TRESPASS  39 

tained  by  proof  of  any  estate  of  freehold,  whether  in  fee,  in  tail,  or  for 
life  only,  and  whether  in  possession  or  expectant  on  the  determina- 
tion of  a  term  of  years.  But  it  does  not  apply  to  the  case  of  a  freehold 
estate  in  remainder  or  reversion  expectant  on  a  particular  estate  of 
freehold  nor  to  copyhold  tenure.  And  he  cites  5  Hen.  VII,  10a,  pi.  2, 
which  shows  that  where  there  is  a  lease  for  years  it  must  be  replied 
in  confession  and  avoidance,  and  is  no  ground  for  traversing  the  plea 
of  liberum  tenementum. 

Without  however,  pursuing  an  inquiry,  now  more  a  matter  of  curi- 
osity than  of  use,  it  is  sufficient  to  say,  that  long  and  established  prac- 
tice has  recognised  the  plea;  and  the  reason  of  it  appears  to  be  equally 
applicable,  whether  the  close  is  specially  or  generally  described  in  the 
plaintiff's  narr.,  or  designated  in  a  novel  assignment. 

Demurrer  overruled. *° 


BROWN  et  al.  v.  ARTCHER  &  VAN  LIET. 

(Supreme  Court  of  New  York,  1841.     1  HUl,  2G6.) 

Demurrer  to  pleas.  The  declaration  was  for  trespass  de  bonis,  &c. 
and  contained  two  counts,  both  of  which  alleged  the  taking  by  the 
defendants  of  certain  goods,  &c.  the  property  of  the  said  plaintiffs. 

The  defendants  pleaded  separately:  1.  The  general  issue;  2.  Pro- 
ceedings against  one  Corl,  a  resident  of  the  city  of  Detroit,  in  the 
state  of  Michigan,  as  an  absent  debtor,  at  the  suit  of  the  defendant 
Van  Liet,  and  one  Hart ;  and  that  Artcher,  under  an  attachment 
issued  therein,  seized  the  goods  as  sheriff  of  Albany.  These  pleas 
averred  respectively,  that  the  goods  belonged  to  Corl.  They  also 
interposed  a  third  plea,  not  materially  different  from  the  second. 

The  plaintiffs  demurred  to  the  special  pleas,  assigning  for  cause, 
among  other  things,  that  they  amounted  to  the  general  issue;  and 
the  defendants  joined  in  demurrer. 

By  the  court,  CowiiN,  J.  It  was  held  in  the  Year  Book,  27  H. 
VIII,  21,  case  11,  that,  in  trespass  de  bonis,  a  plea  that  the  goods  were 
not  the  plaintiff's  property  was  bad.  The  same  thing  was  afterwards 
admitted  in  Wildman  v.  Norton,  (1  Ventr.  249;  2  Lev.  92,  S.  C. 
nom.  Wildman  v.  North).  I  believe  it  has  never  been  denied.  Chitty 
says  that  "the  defendant  cannot  plead  property  in  a  stranger  or  him- 
self, because  that  goes  to  contradict  the  evidence  which  the  plaintiff 
must  adduce  on  the  general  issue  in  support  of  his  case."  (1  Chit. 
Plead.  527,  Am.  Ed.  of  1840.)  The  usual  test  of  an  objection  that 
the  plea  amounts  to  the  general  issue  is,  whether  it  takes  away  all 

40  Lodge  V.  Klein,  115  111.  177,  3  N.  E.  272.  56  Am.  Rep.  133  (188.^) ;  111. 
Central  11.  R.  v.  Hatter,  207  111.  88,  09  N.  E.  751  (1904) ;  Phillips  v.  Kent.  23 
N.  J.  Law,  155  (1851)  semble ;  Millet  v.  Singleton,  1  Nott  &  McC.  (S.  C)  355 
(1818).  Accord.     See,  also,  21  PI.  &  Pr.  839-S41. 


40  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

color  for  maintaining  an  action,  by  fixing  a  negative  upon  the  plain- 
tiff's right  in  the  first  instance.  Thus,  in  trespass  quare  clausum 
fregit,  the  defendant  pleading  title  in  a  third  person,  a  demise  to  him- 
self and  an  entry  under  that  demise,  this  plea  was  held  bad,  because 
it  shewed  a  right  of  possession  in  the  defendant  at  the  time  when  he 
entered  and  committed  the  trespass  complained  of.  (Collett  v.  Flinn, 
5  Cow.  466.)  So,  a  plea  that  he  entered  under  a  licence  from  such 
a  third  person.  (Underwood  v.  Campbell,  13'  Wend.  78.)  Such  a 
plea  standing  alone,  virtually  says,  that  the  defendant  did  not  commit 
any  trespass  in  the  plaintiff's  close ;  and  is,  therefore,  but  another 
mode  of  pleading  not  guilty.  It  absolutely  and  necessarily  denies  all 
possessory  right  in  the  plaintiff,  the  contrary  of  which  he  must  main- 
tain, or  he  is  not  entitled  to  sue.  Such  a  plea  is  said,  by  the  books, 
in  itself  to  take  away  all  color  or  pretence  for  an  action ;  and  there- 
fore, to  be  maintainable  as  a  special  plea,  it  must  surmise  some  pos- 
session in  the  plaintiff,  at  the  time,  under  color  of  a  defective  title. 
Taking  away,  in  itself,  all  implied  color,  it  must,  in  the  same  manner 
mentioned,  substitute  what  is  called  express  color.      (1  Chit  Plead. 

529,  Am.  Ed.  of  1840;   5  Cow.  167,  168,  note.) 

The  same  rule  of  pleading  has  been  applied  to  trespass  de  bonis. 
(1  Chit.  Plead.  530,  Am.  Ed.  of  1840;  Leyfield's  Case,  10  Rep.  90.) 
Chitty  says,  a  plea  that  A.  was  possessed  of  the  goods  in  question 
as  of  his  own  proper  goods,  amounts  to  a  denial  that  the  plaintiff 
had  any  property  in  them,  and  therefore  gives  no  color  of  action  in 
itself.  To  remedy  this  defect,  it  must  surmise  that  the  defendant 
bailed  the  goods  to  a  stranger,  who  delivered  them  to  the  plaintiff, 
from  whom  the  defendant  took  them;  or,  a  possession  of  the  plain- 
tiff under  some  other  defective  title.  (Vid.  Fletcher  v.  Marillier,  9 
Adolph.  &  Ellis,  457.)  It  is  peculiar  to  the  action  of  trespass,  that 
the  defendant  may  surmise  such  possession,  setting  up  a  mere  fiction, 
not  traversable,  and  thus  turn  what  would  otherwise  be  defective  as 
amounting  to  the  general  issue,  into  a  special  plea.     (1  Chit.  Plead. 

530,  Ed.  before  cited.) 

But  if  such  express  color  be  not  given,  the  plea  of  property  in  a 
stranger,  or  the  defendant,  is  emphatically  defective,  in  the  case  of 
trespass  de  bonis;  for  there,  especially,  no  actual  possession  being 
expressly  shown  in  the  plaintiff,  the  law  intends  that  it  is  with  the 
general  owner.  Accordingly,  the  common  count  alleges  merely  that 
the  things  taken  were  the  goods  of  the  plaintiff,  without  otherwise 
showing  possession.     (2  Chit.  PI.  859,  Am.  Ed.  of  1840.) 

In  the  case  at  bar,  all  the  pleas  demurred  to  aver  that  the  goods  in 
question  were  the  goods  of  Corl;  each  following  out  the  averment 
with  the  allegation  that  the  goods  were  therefore  taken  by  an  attach- 
ment against  Corl.  According  to  the  books  cited,  had  the  pleas  stopped 
with  the  averment  of  property  in  Corl,  giving  as  they  do,  no  express 
color,  they  would  have  been  bad  as  amounting  to  the  general  issue. 
Such  an  averment  alone  would  have  cut  off  all  implied  color;   for  it 


Ch.  1)  TRESPASS  41 

would  be  saying,  they  were  not  the  plaintiff's  goods,  in  manner  and 
form  as  he  has  alleged  in  declaring. 

This  being  so,  the  farther  allegations,  showing  a  lawful  authority 
under  the  attachment  to  take  them  as  the  goods  of  Corl,  certainly 
cannot  help  the  pleas.  To  this,  Hallet  v.  Birt,  (12  Mod.  1^0,)  cited 
by  the  plaintiff's  counsel  on  the  argument,  is,  as  he  supposed,  in 
point  against  the  defendant.  The  plea  there  was,  that  the  plaintiff 
had  taken  and  impounded  property  belonging  to  A.,  at  whose  suit 
the  defendant,  under  a  warrant  directed  to  him,  replevied  the  prop- 
erty. This  was  held  bad;  though  the  court  agreed  that  if  the  plea 
had  said,  the  plaintiff  took  and  detained  the  property,  and  so  it  had 
been  taken  by  the  defendant  from  the  plaintiff's  possession,  it  might 
have  been  well  enough.  That  is  probably  one  mode  of  giving  ex- 
press color. 

It  was  supposed  by  the  defendant's  counsel,  on  the  argument,  that 
the  pleas,  by  not  expressly  denying  the  plaintiff's  possession,  con- 
fessed it,  and  so  there  is  implied  color;  whereas  it  is  expressly  said, 
in  Wildman  v.  North,  (2  Lev.  92,)  that  a  plea  of  property  in  a 
stranger,  with  a  traverse  that  the  goods  belonged  to  the  plaintiff,  in 
trespass  amounts  to  the  general  issue,  though  not  in  replevin.  And  it 
is  on  the  authority  of  this  case,  among  others,  that  Chitty  says,  the 
simple  plea  of  property  in  a  stranger  would  be  bad  in  trespass.  Ste- 
phen on  Pleading,  179,  (Am,  Ed.  of  1824,)  says,  the  general  issue 
is  applicable,  if  the  defendant  did  take  the  goods,  but  they  did  not 
belong  to  the  plaintiff.  And  it  is  said  in  Bacon's  Abridgment,  (tit. 
Pleas  &  Pleading,  G,  pi.  3,  p.  372,  Am.  Ed.  of  1813,)  that  if,  in 
trespass,  the  defendant  plead  property  in  a  stranger  or  himself,  it 
amounts  to  the  general  issue,  (Gould's  Plead,  pt.  2,  ch.  6,  par.  78, 
p.  345,  1st  Ed.  S.  P.)  Such  uniform  language  cannot  be  accounted 
for,  unless,  as  I  have  already  supposed,  the  allegation  of  property 
in  a  third  person  involves  a  denial  of  the  plaintiff's  possession. 

The  objection  we  have  thus  examined,  applies  to  all  the  pleas,  and 
we  are  of  opinion  it  is  well  taken. 

It  is  not  necessary  to  say,  whether  there  be  any  foundation  for 
the  other  objections  of  form  specified  by  the  demurrers. 

Judgment  for  plaintiffs.*^ 

41  A  plea  alleging  title  in  the  defendant  or  in  a  third  party  under  whom 
the  defendant  acted  is  bad.  Jacques'  Case,  Style,  355  (1652) ;  Argent  v.  Dur- 
rant,  7  D.  &  E.  403.  406  (1799)  semble ;  ^liller  v.  Miller,  41  Md.  623  (1S74) ; 
Collet  V.  Flinn,  5  Cow.  (N.  Y.)  406  (1820);  Merritt  v.  Miller.  13  Vt.  416 
-  (1841)  semble.  Accord.  Hatton  v.  Morse,  3  Salk.  273  (1702)  semble;  Gerrish 
V.  Train,  3  Pick.  (Mass.)  126  (1825)  semble.  Contra. 

If  express  color  be  given  the  plea  is  good.  Paramour  v.  Johnston,  12  Mod. 
376  (1700)  semble;  Van  Etten  v.  Hurst,  6  Hill  (N.  Y.)  311,  41  Am.  Dec.  748 
(1844).  For  discussions  of  color,  see  1  Chitty  (13th  Am.  Ed.)  525-532; 
Stephen,  Pleading  (Tyler's  Ed.)  206-215. 


42  PLEADINGS  IN  TORT  ACTIONS  (Part   1 

OLSEN  V.  UPSAHL. 

(Supreme  Court  of  Illinois,  1873.     69  111.  273.) 

Mr.  Justice  Craig  *^  delivered  the  opinion  of  the  Court: 

This  was  an  action  of  trespass  quare  clausum  fregit,  brought  in 
the  circuit  court  of  Cook  county  by  Anna  M.  Upsahl  against  Martine 
Olsen,  to  recover  for  breaking  and  entering  her  dwelling  house. 

The  only  plea  filed  by  defendant  was  the  general  issue.  At  the 
March  term,  1873,  of  the  court,  the  cause  was  tried  before  a  jury, 
the  trial  resulting  in  a  verdict  for  plaintiff  for  $300.  The  defendant 
appealed. 

The  facts  in  this  case,  as  shown  by  the  record,  are  these:  The 
plaintiff  was  a  tenant  of  defendant.  Suit  was  instituted  by  the  defend- 
ant against  the  plaintiff  to  recover  possession  of  the  leased  prop- 
erty, before  a  justice  of  the  peace.  The  plaintiff,  being  a  Norwegian, 
and  not  understanding  the  English  language,  did  not  understand  the 
nature  of  the  summons,  and  did  not  understand  where  the  trial  was 
to  be  held.  The  result  was,  judgment  was  obtained  against  her,  and 
a  writ  of  restitution  issued  and  placed  in  the  hands  of  a  constable. 
The  constable  went  to  execute  the  writ,  and  found  the  door  locked. 
He  then  went  to  the  defendant  for  instructions.  She  went  with  him 
to  the  house  and  directed  him  to  break  open  the  door  and  carry  out 
the  goods,  which  he  did.     *     *     * 

The  defendant  claims  the  court  erred  in  refusing  to  give  her  4th 
and  7th  instructions.     The  4th  is  as  follows: 

"The  jury  are  instructed  that,  if  they  believe,  from  the  evidence, 
that  the  acts  complained  of  as  trespass  in  this  case  were  the  acts 
of  an  officer  pursuing  the  authority  of  a  writ  of  restitution,  in  evi- 
dence in  this  case,  and  that  the  said  officer  committed  the  acts  com- 
plained of  in  pursuing  the  authority  of  such  writ  of  restitution, 
then  they  cannot  find  said  defendant  guilty,  even  though  they  may 
believe,  from  the  evidence,  she  was  present  when  said  writ  was 
executed  by  such  officer." 

The  7th  instruction  is  similar  to  the  4th,  at  least  the  same  ques- 
tion is  involved  in  each. 

These  instructions  were  properly  refused,  for  the  reason  that  the 
defendant  could  not  justify  under  the  writ  without  pleading  it.  The 
only  plea  on  file  was,  not  guilty,  and  the  only  issue  under  that  plea, 
before  the  jury,  was  the  defendant  guilty  of  trespass? 

We  understand  the  rule  to  be  well  settled,  in  actions  of  tort,  mat- 
ters in  discharge  or  justification  of  the  action  must  be  specially 
pleaded.     Hahn  v.  Ritter,  12  111.  S3. 

Had  the  defendant  desired  to  justify  under  the  writ,  that  issue 
should  have  been  tendered  by  a  special  plea,  but  she  saw  proper  not 

*2  Part  of  opinion  omitted. 


Ch.  1)  TRESPASS  43 

to  take  that  course,  but  to  rely  entirely  on  denying  the  trespass,  and 
with  that  she  must  now  be  content. 

Perceiving  no  error  in  the  record,  the  judgment  will  be  affirmed. 

Judgment  affirmed.*^ 


FINCH'S  EX'RS  v.  ALSTON. 

(Supreme  Court  of  Alabama,  1832.     2  Stew.  &  P.  83,  23  Am.  Dec.  299.) 

Taylor,  J.**  This  is  an  action  of  trespass  quare  clausum  fregit, 
brought  by  the  defendant  in  error,  against  the  decedent,  in  his  life- 
time, in  the  County  Court  of  Marengo,  and  which,  after  suggestion  of 
the  death  of  the  decedent  in  this  court,  has  been  revived  against  his 
representatives. 

In  the  court  below  the  general  issue  was  pleaded,  a  trial  had  thereon, 
and  a  verdict  and  judgment  were  rendered  in  favor  of  the  original 
plaintiff. 

The  assignments  of  error  all  grow  out  of  the  bill  of  exceptions; 
which  will  be  considered  in  their  order. 

1st.  The  first  assignment  is,  that  "the  court  below  refused  to  admit 
evidence  offered  by  the  defendant  to  prove  that  the  houses  were 
removed  with  the  knowledge  and  consent  of  the  plaintiff,  and  under 
an  acknowledgment  on  his  part  that  they  were  the  property  of  the 
defendant." 

The  part  of  the  bill  of  exceptions,  to  which  this  assignment  relates, 
is  in  the  following  words :    • 

"The  defendant  offered  to  prove  that  a  parol  contract  had  been  en- 
tered into  between  the  parties,  by  v/hich  the  plaintiff  agreed  to  sell, 
and  the  defendant  to  purchase,  the  land  described  in  the  declaration, 
for  a  stipulated  price ;  that  before  the  consummation  of  the  contract, 
the  plaintiff  sold  to  another  person ;  and  that  after  the  time  of  making 
the  contract  and  before  the  sale  of  the  land  by  the  plaintiff  to  the 
third  person  a  conversation  took  place  between  the  parties,  in  which 
the  defendant  expressed  a  wish  to  remove  the  log  houses,  which  form 
the  subject  of  the  present  suit,  and  that  the  plaintiff  acknowledged 
the  houses  to  be  the  property  of  the  defendant,  and  gave  his  consent 
and  approbation  to  the  removal  of  the  same,  in  consequence  of  the 
parol  agreement  of  the  said  land,  and  that  they  were  removed  in 
pursuance  of  the  acknowledgment  thus  made."  This  testimony  was 
rejected  by  the  court. 

43  Leonard  v.  Stacy,  6  Mod.  69  (1704) ;  Coe  v.  English,  6  Houst,  (Del.)  456 
(1881);  McNall  v.  Vehon,  22  III.  499  (18.59)  semble;  Rosenlmrv  v.  Anaell,  6 
Mich.  508  (1859)  semble ;  Demick  v.  Chapman,  11  Johns.  (N.  Y.)  132  (1814). 
Accord.  Neale  v.  Clautice,  7  Har.  &  J.  (Md.)  372  (182G)  semble;  Gerrish 
V.  Train,  3  Pick.  (Mass.)  125  (1825);  \Yilcox  v.  Sherwin,  1  D.  Chip.  (Vt.)  72 
(1797 :  where  defendant  an  officer) ;  Child  v.  Allen,  33  Vt  476,  4S0  (1860). 
Contra. 

*4  Statement  of  facts  and  part  of  the  opinion  omitted. 


44  PLEADINGS  IN   rORT  ACTIONS  (Part    1 

The  question  is,  was  this  competent  testimony  under  the  general 
issue? 

This  proof  was  offered,  not  to  mitigate  the  damages,  but  as  a  de- 
fence to  the  action:  for  it  is  obvious,  that  if  it  appeared  to  the  jury 
that  the  plaintiff  had  authorised  the  houses  to  be  removed,  they  could 
have  rendered  no  verdict  in  his  favor.  The  evidence,  in  fact,  would 
have  amounted  to  a  justification. 

It  was  not  contended  in  argument,  that  the  parol  contract  gave  to 
the  defendant  any  title  to  the  land,  or  a  right  to  enter  upon  it.  That 
agreement  was  admitted  to  be  a  void  one  under  the  statute  of  frauds, 
but  it  was  contended  that  the  authority  given  by  the  plaintiff  to  the 
defendant,  which  it  was  wished  to  prove,  virtually  put  the  defendant 
into  the  possession  of  the  land ;  and  that  he  had  a  right  to  prove 
that  possession  under  the  general  issue.  It  is  most  true  that  in  an 
action  of  this  kind,  the  defendant  is  authorised,  under  the  general 
issue,  to  prove  possession  or  title  in  himself,  because  without  posses- 
sion, the  plaintiff  cannot  sue.  But  to  consider  the  defendant  con- 
structively in  possession,  while  the  plaintiff  was  actually  so,  would  be 
drawing  an  inference  which  no  state  of  the  case  could  warrant. 
We  cannot  view  the  defendant  as  in  possession,  and  must  determine 
whether  the  consent  of  the  plaintiff  to  his  entering  upon  the  land 
and  moving  the  houses,  would  afford  him  an  excuse  for  doing  so, 
as  the  pleadings  stood. 

In  1  Chitty's  Pleadings,  492,  we  are  informed  that  "in  trespass 
whether  to  the  person,  personal  or  real  property,  the  defendant  may, 
under  the  general  issue,  give  in  evidence  any  matter  which  directly 
controverts  the  truth  of  any  allegations,  which  the  plaintiff  on  such 
general  issue,  will  be  bound  to  prove,  and  no  person  is  bound  to  jus- 
tify, who  is  not,  prima  facie,  a  trespasser.  But  where  the  act  would, 
at  common  law,  prima  facie,  appear  to  be  a  trespass,  any  matter  of 
justification  or  excuse,  or  done  by  virtue  of  a  warrant  or  authority, 
must,  in  general,  be  specially  pleaded :  and  therefore,  even  where 
the  defendant  did  the  act  at  the  request  of  the  plaintiff,  or  where 
the  injury  was  occasioned  by  the  plaintiff's  own  default,  these  matters 
of  defence  must  be  specially  pleaded."  And  in  2  Campbell,  378, 
379,  the  same  doctrine  is  laid  down  by  Lord  EHenborough,  in  the 
case  of  Milman  v.  Dolwell.  That  was  an  action  of  trespass  for  cut- 
ting the  plaintiff's  barges  from  their  moorings  in  the  river  Thames, 
whereby  they  had  been  set  adrift  and  injured.  It  appeared  that 
at  a  time  when  there  was  a  great  quantity  of  ice  in  the  Thames,  the 
defendant  took  two  barges  of  the  plaintiff  from  the  middle  of  the  river,, 
where  they  were  moored,  to  the  opposite  shore,  and  that  one  of  them 
was  immediately  after  discovered  to  have  a  hole  in  its  bottom;  but 
there  was  no  evidence  to  show  how  this  had  been  occasioned.  The 
defendant  offered  to  prove  that  if  he  had  not  interfered,  the  barges 
would  most  probably  have  been  destroyed,  as  they  were  in  imminent 
danger  from  the  ice;    that  he  did  what  was  most  for  the  plaintiff's 


Ch.  1)  TRESPASS  45 

advantage,  and  that  he  had  been  employed  by  the  plaintiff  generally, 
to  take  charge  of  the  barges. 

But  Lord  Ellenborough  said:  "These  facts  should  have  been  spe- 
cially pleaded.  I  cannot  admit  evidence  of  them  under  the  plea 
of  not  guilty.  The  defendant  allows  that  he  intermeddled  with  goods, 
which  were  the  property,  and  in  the  possession,  of  the  plaintiff. 
By  so  doing  he  is  presumed  to  be  a  trespasser;  and  if  he  has  any 
matter  of  justification,  he  must  put  it  upon  the  record.  The  plea  of 
not  guilty  only  denies  the  act  done,  and  the  plaintiff's  title  to  the 
subject  of  the  trespass." 

It  is  useless  to  multiply  the  authorities:  this  might  easily  be  done. 
The  quotation  from  Chitty  shews,  that  a  trespass  on  real,  and  one 
on  personal  property,  is  governed  by  the  same  rules.  The  evidence 
was  properly  rejected.     *     *     * 

The  judgment  is  affirmed.*" 


COMSTOCK  V.  ODERMAN. 

(Appellate  Court  of  Illinois,  1885.     18  111.  App.  326.) 

Bailey,  P.  J.*^  This  was  an  action  of  trespass,  brought  by  Oder- 
man,  the  appellee,  against  Comstock  the  appellant.  The  declaration 
contains  four  counts.  The  first  count  alleges  the  demise  by  the  de- 
fendant to  the  plaintiff  of  a  suite  of  rooms  in  a  certain  building 
known  as  291  and  293  Wabash  avenue,  in  the  city  of  Chicago,  the 
lease  containing  a  covenant  for  quiet  enjoyment,  and  also  alleging 
that  the  defendant,  during  the  term  of  the  demise,  with  force  and 
arms,  broke  and  entered  the  demised  premises,  and  by  means  of 
screws,  levers,  posts  and  pillars,  raised  said  building  from  its  founda- 
tions, thereby  breaking  and  damaging  the  walls  and  ceilings,  and 
rendering  the  premises  unfit  for  the  purpose  for  which  they  were 
demised  to  the  plaintiff,  to-wit,  for  the  purpose  of  a  dwelling  for 
the  plaintiff  and  his  family.  The  second  and  third  counts  allege 
the  breaking  and  entering  of  the  demised  premises  by  the  defendant, 
with  force  and  arms,  and  damaging  the  same  in  a  certain  manner 
in  said  counts  respectively  specified;  and  the  fourth  count  charges 
the  defendant  with  breaking  and  entering  said  premises,  with  force 
and  arms,  and  evicting  and  expelling  the  plaintiff  from  the  posses- 
sion thereof.  The  defendant  appeared  and  filed  a  plea  of  not  guilty, 
and  upon  the  issue  thus  formed,  a  trial  was  had  before  the  court 

4  5  Bennett  v.  Alcott,  2  D.  &  E.  166  (1787) ;  Chicago  Co.  v.  Cove.  223  111.  58. 
79  N.  E.  108  (1906) ;  Rupirles  v.  Lesure,  24  Pick.  (Mass.)  187  (1S37) ;  Hetlield 
V.  Railroad  Co.,  29  N.  J.  Law,  571  (1862).  Accord. 

The  rule  is  the  same  in  octions  for  trespass  to  personalty.  Milman  v.  Dol- 
well,  2  Camp.  378  (1810) ;  Hendrix  v.  Trapp,  2  Rich.  Law  (S.  C.)  93  (1&45) ; 
Child  V.  Allen,  33  Vt.  476,  480  (1860)  semble. 

*6  Part  of  the  opinion  omitted. 


46  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

and  a  jury,  resulting  in  a  verdict  and  judgment  in  favor  of  the  plaintiff 
for  $150  damages. 

The  evidence  tended  to  show  that,  during  the  term  of  the  lease,  and 
while  the  plaintiff  was  in  possession  of  the  portion  of  the  building 
demised  to  him,  consisting  of  a  suite  of  rooms  in  the  fourth  story, 
the  defendant  employed  certain  men  to  enter  said  building,  and  by 
means  of  screws,  blocks,  etc.,  to  raise  up  a  portion  of  one  side  of 
the  building,  which  had  settled  below  its  original  position  several 
inches,  whereby  the  floors,  walls  and  ceilings  of  the  plaintiff's  rooms 
were  cracked  and  injured,  the  water  pipes  and  water  closets  obstructed, 
and  the  plaintiff's  premises  rendered  uncomfortable  and  dangerous 
as  a  dwelling  place  for  himself  and  family. 

The  evidence  also  tended  to  show  that  said  building,  at  the  time 
of  the  execution  of  the  lease,  was,  and  up  to  the  time  the  defendant 
made  said  entry  continued  to  be,  in  an  unsafe  and  dangerous  condition, 
and  that  said  entry  and  acts  done  by  the  defendant  and  his  employes, 
were  for  the  purpose  of  making  necessary  repairs,  so  as  to  render  the 
building  reasonably  safe  for  the  persons  and  property  of  the  occu- 
pants. It  is  claimed  that  these  facts  justified  the  entry,  and  that  the 
court  and  jury  wrongfully  ignored  the  defense  thereby  established. 

A  plea  of  not  guilty  in  trespass  operates  merely  as  a  denial  that 
the  defendant  committed  the  trespass  complained  of,  but  matters  in 
justification  must  be  specially  pleaded.  1  Chitty  on  Plead.  531;  Olsen 
V.  Upsahl,  69  111.  273 ;  Harris  v.  Miner,  28  111.  135 ;  Hahn  v.  Ritter, 
12  111.  80.  It  was  therefore  the  duty  of  the  court  and  jury  to  disallow 
the  justification  of  the  trespass,  which  the  defendant  now  seeks  to 
make  out  from  the  evidence,  and  they  were  at  liberty  to  consider  the 
evidence  bearing  upon  the  defense  only  so  far  as  it  might  tend  to 
mitigate  the  defendant's  damages. 

The  defendant  asked  several  instructions  to  the  jury  which  were 
refused.  We  think  they  were  properly  refused.  Most  of  them  were 
based  upon  the  assumed  defense  of  justification  which  was  not  pleaded, 
and  none  of  them,  in  our  opinion,  stated  with  accuracy  any  rule  of 
law  applicable  to  the  case  as  it  was  presented  to  the  jury  upon  the 
pleadings  and  proofs.  There  being  no  error  in  the  record,  the  judg- 
ment will  be  affirmed. 

Judgment  affirmed.*^ 

47  In  the  following  cases  it  is  tield  ttiat  various  other  excuses  must  be 
pleaded  in  confession  and  avoidance :  Hawkins  v.  Wallis.  2  Wilson,  173  (1763 : 
easement);  Watson  v.  Christie,  2  B.  &  P.  223  (ISOO :  discipline);  Knapp  v. 
Salsbury,  2  Camp.  500  (1810 :  contributory  negligence) ;  Clark  v.  Railway 
(C.  C.)  69  Fed.  543  (1S95 :  Vermont  law :  contributory  negligence) ;  Illinois 
Co.  V.  Novak,  184  111.  501  (1900 :  defense  of  property) ;  Strout  v.  Berry,  7 
Mass.  385  (1811 :  easement) ;  Sampson  v.  Henry,  11  Pick.  (Mass.)  379,  387 
(1831:  recaption  of  property);  Snow  v.  Chatfleld,  11  Gray  (Mass.)  12  (1858: 
authority  under  highway  commissioners);  Stow  v.  Scribuer,  6  N.  H.  24  (1832: 
self-defense);  State  v.  Morgan,  25  N.  C.  186,  38  Am.  Dec.  714  (1842:  de- 
fense of  property) ;  Saunders  v.  Wilson,  15  Wend.  (N.  Y.)  338  (1836 :  easement). 
See,  also,  21  PI.  &  Pr.  837. 


Ch.  1)  TRESPASS  4T 

BELLOWS  et  al.  v.  BUTLER. 

(Supreme  Court  of  Michigan,  1901.    127  Mich.  100,  86  N.  W.  533.) 

Error  to  circuit  court,  Benzie  county ;    Clyde  C.  Chittenden,  Judge. 

Action  by  Elwin  Bellows  and  another  against  Digby  B.  Butler. 
From  a  judgment  in  favor  of  defendant,  plaintiffs  bring  error.  Re- 
versed. 

Long,  J.*^  *  *  *  2.  The  plea  was  the  general  issue,  and  it 
is  contended  by  counsel  for  plaintiffs  that  the  defendant  could  not 
claim  the  benefit  of  the  statute  of  limitations  unless  the  same  was 
pleaded.  Section  9729,  Comp.  Laws  1897,  provides:  "All  actions 
for  trespass  upon  lands  or  for  assault  and  battery  or  for  false  im- 
prisonment, and  all  actions  for  slanderous  words  and  for  libels  shall 
be  commenced  within  two  years  next  after  the  cause  of  action  shall 
accrue,  and  not  afterwards,"  This  statute  could  be  taken  advantage 
of  only  by  plea.  Shank  v.  Woodworth,  111  Mich.  642,  70  N.  W. 
140;    Whitworth  v.  Pelton,  81  Mich.  101,  45  N.  W.  500. 

For  these  errors,  the  judgment  must  be  reversed,  and  a  new  trial 
ordered.     The  other  justices  concurred.*^ 

4  8  Part  of  the  opinion  omitted, 

49  Matters  in  discharge  must  be  pleaded  in  confession  and  avoidance:  Doe 
V.  Lee,  4  Taunt.  459  (1812 :  accord  and  satisfaction) ;  Hubbert  v.  Collier, 
6  Ala.  269  (1844 :  arbitration  and  award) ;  Phillips  v.  Kelly,  29  Ala.  628, 
635  (1857:  accord  and  satisfaction);  Kenyon  v.  Sutherland,  8  111.  99,  102 
(1846:  accord  and  satisfaction);  Hahn  v.  Ritter,  12  111.  SO  (1850:  former 
recovery) ;  Noyes  v.  Edgerly,  71  N.  H.  500,  53  Atl.  311  (1902 :  loss  of  cause 
of  action  by  election  of  remedies) ;  Longstreet  v.  Ketcham,  1  N.  J.  Law,  170 
(1793:  accord  and  satisfaction)  semble;  Coles  v.  Carter,  6  Cow,  (N.  Y.)  691 
(1827:   former  recovery). 


48  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

CHAPTER  II 
EJECTMENT 


SECTION  1.— INTRODUCTION 


DISPOSSESSION,  OR  OUSTER,  OF  CHATTELS  REAL. 

(3  Blaekstone's  Comm.  [Christian's  Ed.]  c.  11,  p.  199.) 

A  writ  then  of  ejectione  firmae,  or  action  of  trespass  in  ejectment, 
lieth  where  lands  or  tenements  are  let  for  a  term  of  years :  and  after- 
wards the  lessor,  reversioner,  remainder-man,  or  any  stranger,  doth 
eject  or  oust  the  lessee  of  his  term.  In  this  case  he  shall  have  his  writ 
of  ejection  to  call  the  defendant  to  answer  for  entering  on  the  lands  so 
demised  to  the  plaintiff  for  a  term  that  is  not  yet  expired,  and  eject- 
ing him.  And  by  this  writ  the  plaintiff  shall  recover  back  his  term, 
or  the  remainder  of  it,  with  damages. 

Since  the  disuse  of  real  actions,  this  mixed  proceeding  is  become 
the  common  method  of  trying  the  title  to  lands  or  tenements.  It  may 
not  therefore  be  improper  to  delineate,  with  some  degree  of  minute- 
ness, its  history,  the  manner  of  its  process,  and  the  principles  whereon 
it  is  grounded. 

We  have  before  seen,  that  the  writ  of  covenant,  for  breach  of  the 
contract  contained  in  the  lease  for  years,  was  anciently  the  only  spe- 
cific remedy  for  recovering  against  the  lessor  a  term  from  which  he 
had  ejected  his  lessee,  together  with  damages  for  the  ouster.  But  if 
the  lessee  was  ejected  by  a  stranger,  claiming  under  a  title  superior  to 
that  of  the  lessor,  or  by  a  grantee  of  the  reversion,  (who  might  at  any 
time  by  a  common  recovery  have  destroyed  the  term,)  though  the  lessee 
might  still  retain  an  action  of  covenant  against  the  lessor,  for  non-per- 
formance of  his  contract  or  lease,  yet  he  could  not  by  any  means'  re- 
cover the  term  itself.  If  the  ouster  was  committed  by  a  mere  stranger, 
without  any  title  to  the  land,  the  lessor  might  indeed  by  a  real  action 
recover  possession  of  the  freehold,  but  the  lessee  had  no  other  remedy 
against  the  ejector  but  in  damages,  by  a  writ  of  ejectione  firmas,  for 
the  trespass  committed  in  ejecting  him  from  his  farm.  But  afterwards, 
when  the  courts  of  equity  began  to  oblige  the  ejector  to  make  a  spe- 
cific restitution  of  the  land  to  the  party  immediately  injured,  the  courts 
of  law  also  adopted  the  same  method  of  doing  complete  justice;  and, 
in  the  prosecution  of  a  writ  of  ejectment,  introduced  a  species  of  rem- 
edy not  warranted  by  the  original  writ  nor  prayed  by  the  declaration, 


Ch.  2)  EJECTMENT  49 

(which  are  calculated  for  damages  merely,  and  are  silent  as  to  any 
restitution,)  viz.  a  judgment  to  recover  the  term,  and  a  writ  of  pos- 
session thereupon.  This  method  seems  to  have  been  settled  as  early 
as  the  reign  of  Edward  IV:  though  it  hath  been  said  to  have  first  be- 
gun under  Henry  VII,  because  it  was  probably  then  first  applied  to  its 
present  principal  use,  thatot  trymg  the  title  to__th£jand. 

'  The  better  to  apprehend  the'oDntrivance,  whereby  this  end  is  ef- 
fected, we  must  recollect  that  the  remedy  by  ejectment  is  in  its  orig- 
inal an  action  brought  by  one  who  hath  a  lease  for  years,  to  repair  the 
injury  done  him  by  dispossession.  In  order  therefore  to  convert  it 
into  a  method  of  trying  titles  to  the  freehold,  it  is  first  necessary  that 
the  claimant  do  take  possession  of  the  lands,  to  empower  him  to  con- 
stitute a  lessee  for  years,  that  may  be  capable  of  receiving  this  injury 
of  dispossession.  For  it  would  be  an  offence,  called  in  our  law  main- 
tenance, (of  which  in  the  next  book)  to  convey  a  title  to  another,  when 
the  grantor  is  not  in  possession  of  the  land :  and  indeed  it  was  doubted 
at  first,  whether  this  occasional  possession,  taken  merely  for  the  pur- 
pose of  conveying  the  title,  excused  the  lessor  from  the  legal  guilt  of 
maintenance.  When  therefore  a  person,  who  hath  right  of  entry  into 
lands,  detemines  to  acquire  that  possession,  which  is  wrongfully  with- 
held by  the  present  tenant,  he  makes  (as  by  law  he  may)  a  formal  entry 
on  the  premises;  and  being  so  in  the  possession  of  the  soil,  he  there, 
upon  the  land,  seals  and  delivers  a  lease  for  years  to  some  third  person 
or  lessee :  and,  having  thus  given  him  entry,  leaves  him  in  possession 
of  the  premises.  This  lessee  is  to  stay  upon  the  land,  till  the  prior 
tenant,  or  he  who  had  the  pi-evious  possession,  enters  thereon  afresh 
and  ousts  him ;  or  till  some  other  person  (either  by  accident  or  by 
agreement  beforehand)  comes  upon  the  land,  and  turns  him  out  or 
ejects  him.  For  this  injury  the  lessee  is  entitled  to  his  action  of  eject- 
ment against  the  tenant,  or  this  casual  ejector,  whichever  it  was  that 
ousted  him,  to  recover  back  his  term  and  damages.  But  where  this  ac- 
tion is  brought  against  such  a  casual  ejector  as  is  before  mentioned, 
and  not  against  the  very  tenant  in  possession,  the  court  will  not  suf- 
fer the  tenant  to  lose  his  possession  without  any  opportunity  to  defend 
it.  Wherefore  it  is  a  standing  rule,  that  no  plaintiff  shall  proceed  in 
ejectment  to  recover  lands  against  a  casual  ejector,  without  notice 
given  to  the  tenant  in  possession,  (if  any  there  be,)  and  making  him  a 
defendant  if  he  pleases.  And,  in  order  to  maintpin  j-^^  arf-inn.^  the 
plaintiff  must,  in  case  of  any_defence.  make  out-fom^points  before  the— 
cotlft;   vizrititle^llea^£,_enjry^^d_j^^  ■shf:aL_a_ good 

"~title  in  bis  lessoiywhich  brings  the_matt£r„ol  right  .eniixely  befj3r.e_th£- 
court ;  then,  that  thelessor^_beiPg  seised,  or  possessed  by  virtue  ol  such  ..- 


"tltleT^d  make^him  the  lease  for  the  present_ternL;,  ..th i rrlly^hat Jie^he. 
lessee7~or~pTahrEiff7  did   enter  or   take   possession   in    rnn sequence— »f — 
"sucTi  lease;   and  then,  lastly,  that  the  defendant  ousted  or  ejected  him. ^ 


Iiereupon  TTe~shall  have  judgment  to  recover  his  term  and  damages ; 

WHIT.C.L.PL.- 


50  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

and  shall,  in  consequence,  have  a  writ  of  possession,  which  the  sheriff 
is  to  execute  by  delivering  him  the  undisturbed  and  peaceable  posses- 
sion of  his  term. 

This  is  the  regular  method  of  bringing  an  action  of  ejectment,  in 
which  the  title  of  the  lessor  comes  collaterally  and  incidentally  before 
the  court,  in  order  to  shew  the  injury  done  to  the  lessee  by  this  ouster. 
This  method  must  be  still  continued  in  due  form  and  strictness,  save 
only  as  to  the  notice  to  the  tenant,  whenever  the  possession  is  vacant, 
or  there  is  no  actual  occupant  of  the  premises ;  and  also  in  some  other 
cases.  But,  as  much  trouble  and  formality  were  found  to  attend  the 
actual  making  of  the  lease,  entry,  and  ouster,  a  new  and  more  easy 
method  of  trying  titles  by  writ  of  ejectment,  where  there  is  any  actual 
tenant  or  occupier  of  the  premises  in  dispute,  was  invented  somewhat 
more  than  a  century  ago,  by  the  Lord  Chief  Justice  Rolle,  who  then 
sat  in  the  Court  of  Upper  Bench ;  so  called  during  the  exile  of  King 
Charles  the  Second.  This  new  method  entirely  depends  upon  a  string 
of  legal  fictions :  no  actual  lease  is  made,  no  actual  entry  by  the  plain- 
tiff, no  actual  ouster  by  the  defendant ;  but  all  are  merely  ideal,  for  the 
sole  purpose  of  trying  the  title.  To  this  end,  in  the  proceedings  a  lease 
for  a  term  of  years  is  stated  to  have  been  made  by  him  who  claims 
title,  to  the  plaintiff  who  brings  the  action,  as  by  John  Rogers  to  Rich- 
ard Smith,  which  plaintiff  ought  to  be  some  real  person,  and  not  merely 
an  ideal  fictitious  one  who  hath  no  existence,  as  is  frequently  though 
unwarrantably  practised :  it  is  also  stated  that  Smith  the  lessee  en- 
tered ;  and  that  the  defendant,  William  Stiles,  who  is  called  the  cas- 
ual ejector,  ousted  him;  for  which  ouster  he  brings  this  action.  As 
soon  as  this  action  is  brought,  and  the  complaint  fully  stated  in  the 
declaration,  Stiles,  the  casual  ejector,  or  defendant,  sends  a  written 
notice  to  the  tenant  in  possession  of  the  lands,  as  George  Saunders, 
informing  him  of  the  action  brought  by  Richard  Smith,  and  transmit- 
ting him  a  copy  of  the  declaration :  withal  assuring  him  that  he.  Stiles 
the  defendant,  has  no  title  at  all  to  the  premises,  and  shall  make  no 
defence;  and  therefore  advising  the  tenant  to  appear  in  court  and  de- 
fend his  own  title:  otherwise  he,  the  casual  ejector,  will  suffer  judg- 
ment to  be  had  against  him;  and  thereby  the  actual  tenant  Saunders 
will  inevitably  be  turned  out  of  possession. .  On  receipt  of  this  friendly 
caution,  if  the  tenant  in  possession  does  not  within  a  limited  time  apply 
to  the  court  to  be  admitted  a  defendant  in  the  stead  of  Stiles,  he  is  sup- 
posed to  have  no  right  at  all;  and,  upon  judgment  being  had  against 
Stiles  the  casual  ejector,  Saunders  the  real  tenant  will  be  turned  out  of 
possession  by  the  sheriff. 

But,  if  the  tenant  in  possession  applies  to  be  made  a  defendant,  it 
is  allowed  him  upon  this  condition;  that  he  enter  into  a  rule  of  court 
to  confess,  at  the  trial  of  the  cause,  three  of  the  four  requisites 
of  the  maintenance  of  the  plaintiff's  action;  viz.  the  lease  of  Rogers 
the  lessor,  the  entry  of  Smith  the  plaintiff,  and  his  ouster  by  Saun- 
ders himself,  now  made  the  defendant  instead  of  Stiles:    which  re- 


Ch.  2)  '  EJECTMENT  ^^ 

quisites  being  wholly  fictitious,  should  the  defendant  put  the  plaintiff 
to  prove  them,  he  must  of  course  be  nonsuited  for  want  of  evidence ; 
but  by  such  stipulated  confession  of  lease,  entry,  and  ouster,  the  trial 
A^ill  now  stand  upon  the  merits  of  the  title  only.  This  done,  the  dec- 
laration is  altered  by  inserting  the  name  of  George  Saunders  instead  of 
William  Stiles,  and  the  cause  goes  down  to  trial  under  the  name  of 
Smith,  (the  plaintiff,)  on  the  demise  of  Rogers,  (the  lessor,)  against 
Saunders,  the  new  defendant.  And  therein  the  lessor  of  the  plaintiff 
is  bound  to  make  out  a  clear  title,  otherwise  his  fictitious  lessee  cannot 
obtain  judgment  to  have  possession  of  the  land  for  the  term  supposed 
to  be  granted.  But,  if  the  lessor  makes  out  his  title  in  a  satisfactory . 
manner,  then  judgment  and  a  writ  of  possession  shall  go  for  Richard 
Sniith  the  nominal  plaintiff',  who  bv  this  trial  has  proved  the  right  of 
_Jolm  Rogers  his  supposed  lessor.  Yet,  to  prevent  fraudulent  recov- 
eries of  the  possession,  by  collusion  with  the  tenant  of  the  land,  all 
tenants  are  obliged  by  statute  11  Geo.  II,  c.  19,  on  pain  of  forfeiting 
three  years  rent,  to  give  notice  to  their  landlords,  when  served  with 
any  declaration  in  ejectment:  and  any  landlord  may  by  leave  of  the 
court  be  made  a  co-defendant  to  the  action,  in  case  the  tenant  himself 
appears  to  it;  or,  if  he  makes  default,  though  judgment  must  be  then 
signed  against  the  casual  ejector,  yet  execution  shall  be  stayed,  in  case 
the  landlord  applies  to  be  made  a  defendant,  and  enters  into  the  com- 
mon rule ;  a  right,  which  indeed  the  landlord  had,  long  before  the  pro- 
vision of  this  statute:  in  like  manner  as  (previous  to  the  statute  of 
Westm.  II,  c.  3.)  if  in  a  real  action  the  tenant  of  the  freehold  made  de- 
fault, the  remainder-man  or  reversioner  had  a  right  to  come  in  and 
defend  the  possession;  lest,  if  judgment  were  had  against  the  tenant, 
the  estate  of  those  behind  should  be  turned  to  a  naked  right.  But  if 
the  new  defendants,  whether  landlord  or  tenant,  or  both,  after  enter- 
ing into  the  common  rule,  fail  to  appear  at  the  trial,  and  to  confess 
lease,  entry,  and  ouster,  the  plaintiff  Smith  must  indeed  be  there  non- 
suited, for  want  of  proving  those  requisites;  but  judgment  will  in  the 
end  be  entered  against  the  casual  ejector  Stiles;  for  the  condition  on 
which  Saunders,  or  his  landlord,  was  admitted  as  defendant  is  broken, 
and  therefore  the  plaintiff'  is  put  again  in  the  same  situation  as  if  he 
never  had  appeared  at  all;  the  consequence  of  which  (we  have  seen) 
would  have  been,  that  judgment  would  have  been  entered  for  the  plain- 
tiff, and  the  sheriff,  by  virtue  of  a  writ  for  that  purpose,  would  have 
turned  out  Saunders,  and  delivered  possession  to  Smith.  The  same 
process  therefore  as  would  have  been  had,  provided  no  conditional  rule 
had  been  ever  made,  must  now  be  pursued  as  soon  as  the  condition  is 
broken. 

The  damages  recovered  in  these  actions,  though  formerly  their  only 
intent,  are  now  usually  (since  the  title  has  been  considered  as  the  prin- 
cipal question)  very  small  and  inadequate;  amounting  commonly  to 
one  shilling,  or  some  other  trivial  sum.  In  order  therefore  to  com- 
plete the  remedy,  when  the  possession  has  been  long  detained  from  him 


52  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

that  had  the  right  to  it,  an  action  of  trespass  also  lies,  after  a  recovery 
in  ejectment,  to  recover  the  mesne  profits  which  the  tenant  in  possession 
has  v/rongfully  received.  Which  action  may  be  brought  in  the  name 
of  either  the  nominal  plaintiff  in  the  ejectment,  or  his  lessor,  against 
the  tenant  in  possession  :  whether  he  be  made  party  to  the  ejectment,  or 
suffers  judgment  to  go  by  default.  In  this  case  the  judgment  in  eject- 
ment is  conclusive  evidence  against  the  defendant,  for  all  profits  which 
have  accrued  since  the  date  of  the  demise  stated  in  the  former  declara- 
tion of  the  plaintiff;  but  if  the  plaintiff  sues  for  any  antecedent  prof- 
its, the  defendant  may  make  a  new  defence. 

Su-h  is  the  modern  way  of  obliquely  bringing  in  question  the  title 
to  lar  ds  and  tenements,  in  order  to  try  it  in  this  collateral  manner ;   a 
meth  >d  which  is  now  universally  adopted  in  almost  every  case.    It  is 
fount 'ed  on  the  same  principle  as  the  ancient  writs  of  assize,  being  cal- 
culat  d  to  try  the  mere  possessory  title  to  an  estate;    and  hath  suc- 
ceedrd  to  those  real  actions,  as  being  infinitely  more  convenient  for 
attai  ling  the  end  of  justice:    because  the  form  of  the  proceeding  be- 
ing '°ntirely  fictitious,  it  is  wholly  in  the  power  of  the  court  to  direct 
the  application  of  that  fiction,  so  as  to  prevent  fraud  and  chicane,  and 
eviscerate  the  very  truth  of  the  title.     The  writ  of  ejectment  and  its 
nominal  parties  (as  was  resolved  by  all  the  judges)  are    'judicially  to 
'"5e  considered  as  the  fictitious  form  ot  an'^ctTon,  really  brought  by  the 
"lessor  of  the  plaintiff  against  the  tenant  in  possession :  invented,  undejr 
the  controF^and  power  of  the  court,  for  the  advancement  of  justice  in 
"^^TTan^Trespects ;    and  to  torce  the  parties  to  go  to  trial  on  the^.m£ritS2_ 
"*  witliout  being  entangled  in  the  nicety  ofpleadings  on  either  side." 


STATUTES  ON  EJECTMENT.' 

(Eevised  Statutes  of  New  York,  1S29.    Chapter  5,  tit.  1.) 

Section  1.  The  action  of  ejectment  is  retained,  and  may  be  brought 
in  the  cases  and  the  manner  heretofore  accustomed,  subjeci;  to  the  pro- 
visions hereinafter  contained. 

Section  3.  No  person  can  recover  in  ejectment,  unless  he  has  at  the 
time  of  commencing  the  action,  a  valid  subsisting  interest  in  the  prem- 
ises claimed,  and  a  right  to  recover  the  same,  or  to  recover  the  posses- 
sion thereof,  or  of  some  share,  interest  or  portion  thereof,  to  be  proved 
and  established  at  the  trial. ^ 

Section  4.  If  the  premises  for  which  the  action  is  brought,  are  ac- 
tually occupied  by  any  person,  such  actual  occupant  shall  be  named 

1  In  this  and  the  subsequent  notes  to  these  statutes  no  attempt  is  made 
to  cite  every  similar  statute.  Nor  does  the  citation  of  a  statute  imply  that 
its  terms  are  exactly  the  same  as  the  one  printed  in  the  text.  For  statutes 
similar  to  this  section  see  Illinois,  Kurd's  Rev.  St.  1908,  Eject,  c.  45,  §  4 ; 
Michigan,  Comp.  Laws  1897,  §  10,949;  Tennessee,  Code  1896  (Supp.  1903)  § 
4970. 


Ch.   2)  EJECTMENT  53 

defendant  in  the  declaration ;  if  they  are  not  so  occupied,  llie  action 
must  be  brought  against  some  person  exercising  acts  of  ownership  on 
the  premises  claimed,  or  claiming  title  thereto,  or  some  interest  tjgj^in, 
at  the  commencement  of  the  suit.^  ^^V 

Section  5.  It  shall  be  commenced  by  the  service  of  a  declaration,  in 
which  the  names  of  the  real  claimants  shall  be  inserted  as  plaintiffs, 
and  all  the  provisions  of  law  concerning  lessors  of  a  plaintiff,  shall 
apply  to  such  plaintiffs. 

Section  6.  The  use  of  fictitious  names  of  plaintiffs  or  defendants, 
and  of  the  names  of  any  other  than  the  real  claimants  and  the  real  de- 
fendants, and  the  statement  of  any  lease  or  demise  to  the  plaintiff,  and 
of  an  ejectment  by  a  casual  or  nominal  ejector,  are  hereby  abolished.^ 

Section  7.  It  shall  be  sufficient  for  the  plaintiff  to  aver  in  his  dec- 
laration, that  on  some  day  therein  to  be  specified,  and  which  shall  be 
after  his  title  accrued,  he  was  possessed  of  the  premises  in  question, 
describing  them  as  herein  after  provided,  and  being  so  possessed 
thereof,  that  the  defendant  afterwards,  on  some  day  to  be  stated,  en- 
tered into  such  premises,  and  that  he  unlawfully  withholds  from  the 
plaintiff  the  possession  thereof,  to  his  damage,  any  nominal  sum  the 
plaintiff  shall  think  proper  to  state.* 

Section  10.  If  the  action  be  bi ought  for  the  recovery  of  dower,  the 
declaration  shall  state  that  the  plaintiff  was  possessed  of  the  one  un- 
divided third  part  of  the  premises,  as  her  reasonable  dower  as  widow 
of  her  husband,  naming  him.  In  every  other  case,  the  plaintiff  shall 
state  whether  he  claims  in  fee,  or  whether  he  claims  for  his  own  life, 
or  the  life  of  another,  or  for  a  term  of  years,  specifying  such  lives  or 
duration  of  such  term.'' 

Section  22.  The  defendant  may  demur  to  the  declaration  as  in  per- 
sonal actions ;  or  he  shall  plead  the  general  issue  only,  which  shall  be 
that  the  defendant  is  not  guilty  of  unlawfully  withholding  the  premiset, 
claimed  by  the  plaintiff,  as  alleged  in  the  declaration;    and  the  filing 

2  District  of  Columbia.  Code  of  Laws  1901,  c.  23,  §  984 ;  Hawaii,  Rev. 
Laws  1005,  §  172r, ;  Illinois,  Hnrd's  Rev.  St.  1908,  c.  45.  §§  6,  7;  Micliigau. 
Comp.  Laws  1897,  §  10.950;  Mississippi,  Code  1906,  §  1803;  New  Jersey, 
2    Gen.    St.    1895,    Eject,    p.    1282.    §§   3,    4;     Pennsylvania.    Purdon's    Disest 

1903,  Ejectment,  §  9 ;  Virginia,  Code  1904,  §  2726 ;  West  Virginia,  Code  1906, 
§  3340. 

8  See  the  statutes  collected  in  7  Ency.  Forms.  289. 

4  Alabama,  Code  1907,  §  3839 ;  District  of  Columbia,  Code  of  Laws  1901,  c. 
23,  §  985;  Illinois,  Kurd's  Rev.  St.  1908.  c.  45.  §  11;  Michigan,  Comp.  Laws 
1897,   §   10.953;    Tennessee,   Code  1896   (Supp.   1903)   §  4975;    Virginia,   Code 

1904,  §  2728 ;    West  Virginia,  Code  1906,  §  3342. 

In  other  states  the  statutes  provide  for  still  less  cumbersome  declarations. 
Florida.  Gen.  St.  1906,  §  1968;  ^Nlaine,  Rev.  St.  1883  (Supp.  1895)  c.  104, 
§  2 ;  Massachusetts,  Rev.  Laws  1902,  c.  179,  §  2 ;  New  Jersey,  2  Gen.  St.  1895. 
Eject,  p.  1283,  §  10. 

5  Illinois,  Kurd's  St.  1908,  c.  45,  §  13 ;  Maine,  Rev.  St.  1883  (Supp.  1895i 
c.  104,  §  3;  Massachusetts,  Rev.  Laws  1902,  c.  179,  §  2;  Michigan,  Comp 
Laws  1897,  §  10.956;  Tennessee,  Code  1896  (Supp.  1903)  §  4976;  Virginia 
Code  1904,  §  2730 ;    West  Virginia,  Code  1906,  §  3344. 


54  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

and  service  of  such  plea  or  demurrer,  shall  be  deemed  an  appearance 
in  the  cause.  And  upon  such  plea,  the  defendant  may  give  the  same 
mat^l^n  evidence,  and  the  same  proceedings  shall  be  had,  as  upon  the 
ple^^Bnot  guilty  in  the  present  action  of  ejectment,  except  as  herein 
otherwise  provided.® 

Section  24.  The  consent  rule,  heretofore  used,  is  hereby  abolished. 

Section  26.  It  shall  not  be  necessary  on  the  trial,  for  the  defendant 
to  confess,  nor  for  the  plaintiff  to  prove,  lease,  entry  and  ouster,  or 
either  of  them,  except  as  provided  in  the  next  section;  but  this  sec- 
tion shall  not  be  construed  to  impair,  nor  in  any  way  to  affect,  any  of 
the  rules  of  evidence  now  in  force,  in  regard  to  the  maintenance  and 
■defence  of  the  action. 

(Kurd's  Revised  Statutes  of  Illinois,  1908.     Chapter  45.) 

Section  18.  The  landlord,  whose  tenant  is  sued  in  ejectment,  may, 
upon  his  own  motion  or  that  of  the  plaintiff,  be  made  defendant  in 
such  action,  upon  such  terms  as  may  be  ordered  by  the  court.'^ 

Section  21.  The  plea  of  not  guilty  shall  not  put  in  issue  the  posses- 
sion of  the  premises  by  the  defendant,  or  that  he  claims  title  or  inter- 
est in  the  premises.® 

Section  22.  It  shall  not  be  necessary  for  the  plaintiff  to  prove  that 
the  defendant  was  in  possession  of  the  premises,  or  claims  title  or  in- 
terest therein  at  the  time  of  bringing  the  suit,  or  that  the  plaintiff  de- 
manded the  possession  of  the  premises,  unless  the  defendant  shall  deny 
that  he  was  in  such  possession,  or  claims  title  or  interest  therein,  or 
that  demand  of  possession  was  made,  by  special  plea,  verified  by  affida- 
vit. 

6  Michigan,  Comp.  Laws  1897,  §  10,967 ;  Virginia,  Code  1904,  §  2734 ;  West 
Virginia,  Code  1906,  §  3348.  In  Pennsylvania,  on  the  other  hand,  the  defend- 
ant must  by  special  plea  set  forth  any  defenses  he  intends  to  rely  upon. 
Pennsylvania,  Purdon's  Digest  1903,  Eject.  §  21. 

7  Alabama.  Code  1907,  §  3844 ;  Delaware,  Rev.  Code  1893,  c.  119,  §  2 ;  Dis- 
trict of  Columbia,  Code  of  Laws  1901,  c.  23,  §  984;  Illinois,  Hurd's  Rev. 
St.  1908,  c.  45,  §  18;  Mississippi,  Code  1906,  §  1805;  New  Jersey,  2  Gen.  St. 
1895,  Eject,  p.  1284,  §  17;  Pennsylvania,  Purdon's  Dig.  1903,  Eject.  §  3;  Ten- 
nessee. Code  1896  (Supp.  1903)  §  4973;  Vermont,  St.  1894,  §  1487;  Virginia, 
Code  1904,  §  2726 ;    West  Virginia,  Code  1906,  §  3340. 

8  Alabama,  Code  1907,  §  3842;  Florida,  Gen.  St.  1906,  §  1968;  Mississippi, 
Code  1906.  §§  1821,  1822;  New  Jersey,  2  Gen.  St.  1895,  Eject  p.  1284,  §  13; 
Tennessee,  Code  1896  (Supp.  1903)  §  4981. 


Ch.  2)  EJECTMENT  55 


SECTION  2.— SCOPE  OF  THE  ACTION 


CASEY,  et  al.  v.  KIMMEL. 
(Supreme  Court  of  Illinois,  1899.     181  111.  154,  54  N.  E.  905.) 

Appeal  from  circuit  court,  Peoria  county ;  T.  M.  Shaw,  Judge. 

Action  in  ejectment  by  Charles  A.  Kimmel  against  Edwin  A.  Casey 
and  others.  From  a  judgment  for  plaintiff  against  defendants  Edwin 
A.  Casey  and  James  B.  Oglesby,  they  appeal.    Affirmed. 

Mr.  Justice  Carter  ®  delivered  the  opinion  of  the  court.     *     *     * 

But  it  is  contended  that  the  court  erred  in  directing  a  verdict  for  the 
plaintiff.  The  plaintiff's  title  was  derived  by  mesne  conveyances  from 
Moses  Stringer,  who  settled  upon  the  quarter  section  containing  the 
10  acres  in  controversy  in  1838,  but,  owing  to  a  defect  in  the  proof, 
the  plaintiff  was  unable  to  conn'ect  him  with  the  patent  title.  The  evi- 
dence showed,  however,  that  he  lived  upon  and  improved  a  part  of  the 
quarter  section  for  many  years,  and  tended  to  prove  that  he  claimed  to 
own  it,  but  there  was  no  evidence,  specifically  applicable  to  the  tract  in 
controversy,  that  Stringer  improved  it,  claimed  to  own  it,  or  exercised 
any  acts  of  ownership  over  it,  except  that  it  was  a  part  of  the  quar- 
ter section  the  south  half  of  which  he  improved,  and  that  he  sold  and 
conveyed  it,  having  made  the  first  conveyance  in  1851  in  the  chain  of 
title  which  ended  in  the  plaintiff"  in  1890.  Being  unable  to  trace  his  ti- 
tle beyond  Stringer,  the  plaintiff,  to  make  a  prima  facie  case,  sought 
to  prove :  First,  that  when  said  Stringer  conveyed  this  tract  he  was  in 
possession,  claiming  to  own  it;  second,  that  other  intermediate  grant- 
ors, when  they  conveyed,  were  in  possession,  claiming  to  own  it ;  and, 
finally,  that  he  entered  into  possession  of  the  same  property  under  his 
deed  in  1890,  and  held  possession  of  the  same  until  appellants  intruded 
and  took  possession,  in  1895.  If  the  plaintiff  succeeded  in  proving  ei- 
ther of  the  propositions  mentioned,  he  thereby  established  a  prima 
facie  case,  and  was  entitled  to  judgment,  unless  the  presumption  thus 
raised  in  his  favor  was  overcome  by  the  defendants.  Anderson  v.  Mc- 
Cormick,  129  111.  308,  21  N.  E.  803;  Barger  v.  Hobbs,  67  111.  592; 
Doe  V.  Herbert,  Breese,  354,  12  Am.  Dec.  192;  Mason  v.  Park,  3 
Scam.  532;  Keith  v.  Keith,  104  111.  397;  De  Witt  v.  Bradbury,  94  111. 
446 ;  Bowman  v.  Wettig,  39  111.  416 ;  Bank  v.  Godfrey,  23  111.  579 ; 
Coombs  V.  Hertig,  162  111.  171,  44  N.  E.  392;  Harland  v.  Eastman, 
119  111.  22,  8  N.  E.  810.  Appellants  had  no  title  whatever,  but  claimed 
that  the  land  was  vacant  and  unoccupied,  had  been  abandoned,  and 
that  they  were  entitled  to  hold  it  against  the  plaintiff — First,  because 
he  had  failed  to  prove  title  in  himself;   and,  second,  because  they  had 

8  Part  of  the  opinion  omitted. 


56  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

proved  title  in  fee  in  a  third  person.  They  did  not  claim  under,  nor 
connect  themselves  with,  the  title  of  such  third  person  in  any  way. 
Being  mere  trespassers,  and  without  title,  appellants  could  not  set  up 
an  outstanding  title  in  another.  Anderson  v.  Gray,  134  111.  550,  25  N. 
E.  843,  23  Am.  St.  Rep.  696.  *  *  * 
Judgment  affirmed.^* 

10  In  Shaw  v.  Hill,  79  Mich.  86,  90,  44  N.  W.  422,  423  (1889),  the  court 
said : 

"The  action  of  ejectment  in  this  state  is  governed  by  the  provisions 
of  the  statute  relating  to  the  action.  Section  7790,  How.  Ann.  St.  provides 
that — 'No  person  can  recover  in  ejectment  unless  he  has,  at  the  time  of  com- 
mencing the  action,  a  valid,  subsisting  interest  in  the  premises  claimed,  and 
a  right  to  recover  the  possession  thereof,  or  of  some  share,  interest,  or  por- 
tion thereof,  to  be  proved  and  established  at  the  trial.' 

"It  is  evident  that  the  'valid,  subsisting  interest  in  the  premises  claimed' 
is  something  different  from  a  right  to  recover  possession  of  the  premises, 
for  the  statute  requires  that  each  shall  co-exist.  The  right  of  possession 
alone  will  not  sustain  the  action.  It  was  urged  upon  the  argument  that,  the 
plaintiff's  deed  having  been  held  to  be  void  by  the  circuit  judge,  he  could 
not  maintain  this  action,  based  upon  his  naked  possession,  because  he  had 
no  valid,  subsisting  interest  in  the  premises.  The  law  is  well  settled  that  the 
possession  of  land  is  sufficient  to  authorize  a  recovery  in  an  action  of  eject- 
ment against  a  mere  intruder ;  and,  in  the  absence  of  proof  of  a  paper  title 
on  either  side,  the  presumption  of  title  is  in  favor  of  the  first  possessor. 
Davis  V.  Easley,  13  111'.  192 ;    Brooks  v.  Bruin,  18  111.  541 ;   Hubbard  v.  Little, 

9  Cush.  (Mass.)  475;  Jones  v.  Easley,  53  Ga.  454;  Christy  v.  Scott,  14  How. 
282.  14  L.  Ed.  422;  Burt  v.  Paujaud,  99  U.  S.  180,  25  L.  Ed.  451;  Whitney 
V.  Wright,  15  Wend.  (N.  Y.)  171 ;  Thompson  v.  Burhans,  79  N.  Y.  93 ;  Kin- 
ney V.  Harrett,  46  Mich.  87,  8  N.  W.  708.  The  authorities  might  be  greatly 
extended,  but  it  is  unnecessary. 

"The  presumption  arising  from  proof  of  prior  possession  of  a  party,  in  an 
action  of  ejectment  against  a  mere  intruder,  is  that  the  party  having  such 
prior  possession  was  seized  in  fee,  and  is  prima  facie  evidence  of  such  fact. 
Cole,  Ej.  212,  213;  Malone,  Real  Prop.  Tr.  98;  2  Greenl.  Ev.  §  311.  Actual 
possession  of  real  estate  under  a  claim  of  ownership,  is  an  element  of  title; 
and,  if  continued  a  suflicient  length  of  time,  openly,  adversely,  and  contin- 
uously, will  ripen  into  a  complete  legal  title. 

"In  view  of  the  above  well-recognized  principles.  I  do  not  think  it  was  the 
Intention  of  the  Legislature  to  deprive  a  party  who  has  been  ousted  from 
possession  by  a  mere  intruder  from  maintaining  his  action  of  ejectment.  As 
against  such  a  person,  the  party  first  in  possession,  claiming  title,  has  a 
ralid,  subsisting  interest,  amounting  to  a  prima  facie  title  in  fee.  Bates 
V.  Campbell,  25  Wis.  613." 

Possession  is  sufficient.  Read  v.  Essington,  Cro.  Eliz.  321  (1591) ;  Allen 
f.  Rivington,  2  Saund.  110  (1670);  Doe  v.  Dyeball,  Moody  &  M.  346  (1829); 
Hubbard  v.  Little,  9  Cush.  (Mass.)  475  (1852) ;  Den  v.  Sinnickson.  9  N.  J.  Law, 
149  (1S27) ;  Smith  v.  Lorillard,  10  Johns.  (N.  Y.)  338,  354  (1813) ;  Turner  v. 
Reynolds,  23  Pa.  199,  205  (1854).  Accord.  For  many  more  citations  see  1 
Chitty,  Pleading  (16th  Am.  Ed.)  *212;    15  Cyc.  30;    10  Am.  &  Eng.  Ency.  486. 

No  doubt  it  is  immaterial  that  the  plaintiff's  possession  was  wrongful  as 
against  third  parties.  See  Asher  v.  Whitlock,  L.  R.  1  Q.  B.  1  (1865) ;  Slater 
V.  Rawson,  6  Mete.  (Mass.)  439,  444  (1843)  semble;  Hubbard  v.  Little,  9 
Cush.  (Mass.)  475  (1852)  semble;  Hoey  v.  Furman,  1  Pa.  295,  299,  44  Am. 
Dec.  129  (1845)  semble. 

Right  to  possession  is  sufficient.  Doe  v.  Calvert,  2  East,  376  (1802);  Jack- 
son V.  Schoonmaker,  4  Johns.  (N.  Y.)  390  (1809).     See,  also,  15  Cyc.  33,  39; 

10  Am.  &  Eng.  Ency.  484. 

An  owner  without  possession  or  right  to  possession  cannot  recover.  Right 
V.  Beard,  13  East,  210  (1811) ;  Scisson  v.  McLaws,  12  Ga.  166  (1852)  semble , 
Herrell  v.  Sizeland,  81  III.  457  (1876);    Wilson  v.  Inloes,  11  Gill  &  J.  (Md.) 


Ch.  2)  EJECTMENT  67 

SMITH  V.  LORILLARD. 
(Supreme  Court  of  New  York,  1813.     10  Johns.  338.) 

This  was  an  action  of  ejectment,  brought  to  recover  possession 
of  a  lot  of  ground  in  Chamber  street,  in  the  6th  ward  of  the  city 
of  New  York.  The  cause  was  tried  before  Mr.  Justice  Van  Ness, 
at  the  New  York  sittings,  on  the  12th  December,  1811.^^ 

Kent,  C.  J.  dehvered  the  opinion  of  the  court.  The  most  im- 
portant point  in  this  case  is,  whether  the  lessors  of  the  plaintiff  showed 
sufficient  evidence  of  title  to  authorize  a  recovery. 

They  showed  that  in  May,  1768,  J.  Teller,  their  ancestor,  entered 
into  possession  of  a  house  which  he  had  built  two  or  three  years 
before  on  the  negroes'  burying-ground,  and  which  had,  previously  to 
his  entrance,  been  occupied  by  his  tenant.  That  he  had  a  fence  en- 
closing the  burying-ground,  and  claimed  it  as  his  property,  and  pas- 
tured it,  and  kept  the  key  of  the  gate  leading  to  the  ground,  and  took 
payment  for  the  use  of  the  ground,  and  that  it  was  known  and 
called  by  the  name  of  his  land  and  fence.  That  he  continued  in  pos- 
session until  his  death  in  June,  1775,  and  his  family  continued  in 
possession  afterwards,  and  until  the  commencement  of  the  troubles, 
(as  one  of  the  witnesses  expressed  it,)  and  which  undoubtedly  alluded 
to  the  invasion  of  New  York,  in  1776;  and  that  then  the  family 
left  the  city  and  retired  into  the  country,  and  the  British  army  took 
possession  of  the  house  and  lot,  and  during  the  course  of  the  war, 
and  while  under  the  dominion  of  the  British,  the  house  and  fences 
were  destroyed.  That  the  premises  claimed  are  a  part  of  the  burying- 
ground  so  possessed  by  J.  Teller,  and  except  the  occupation  by  the 
British  troops,  no  possession  adverse  to  the  claim  of  the  lessors 
took  place,  as  to  the  land  now  demanded,  until  the  year  1795. 

These  facts  were,  upon  the  trial,  declared  to  be  sufiicient  to  war- 
rant a  recovery.  They  are  prima  facie  evidence  of  right  and  it  is 
not  necessary  that  the  plaintiff  in  ejectment  should,  in  every  case,  show 
a  possession  of  twenty  years,  or  a  paper  title.  A  possession  for  a 
less  period  will  form  a  presumption  of  title  sufficient  to  put  the  de- 
fendant upon  his  defence.  This  was  intimated  by  the  court  in 
respect  to  this  very  claim,  in  the  case  of  Smith  v.  Burtis  &  Wood- 
ward, 6  Johns.  218,  5  Am.  Dec.  218,  and  a  recovery  was  permitted 
in  that  case  upon  the  same  presumptive  evidence  of  right.  9  Johns. 
174.     A  prior  possession  short  of  twenty  years,  under  a  claim  or 

351,  358  (1840)  semble.  Accord.  See,  also,  15  Cyc.  50,  51;  10  Am.  &  Bng. 
Ency.  494,  495. 

There  is  a  little  authority  to  the  effect  that  possession  is  insufficient  against 
one  who  enters  under  a  liona  fide,  thouch  croundless.  claim  of  right.  River- 
side Co.  V.  Townsheud,  120  111.  9,  20,  9  N.  E.  65  (1SS6)  semble;  Shaw  v.  Hill, 
83  Mich.  322,  42  N.  W.  247,  21  Am.  St.  Rep.  607  (1890) ;  Jackson  v.  Right- 
myre,  16  Johns.  (N.  Y.)  314  (1819) ;  Fowler  v.  Whiteman,  2  Ohio  St.  271,  286 
(1853). 

11  Statement  of  facts  abridged. 


58  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

assertion  of  right,  will  prevail  over  a  subsequent  possession  of  less 
than  twenty  years,  when  no  other  evidence  of  title  appears  on  either 
side.  There  are  many  decisions  of  this  court  which  look  to  this  point. 
Jackson  v.  Hazen,  2  Johns.  22;  Jackson  v.  Myers,  3  Johns.  388, 
3  Am.  Dec.  504;  Jackson  v.  Harder,  4  Johns.  202,  4  Am.  Dec.  262. 
It  is,  however,  to  be  understood  in  the  cases  to  which  the  rule  of 
evidence  applies,  that  the  prior  possession  of  the  plaintiff  had  not 
been  voluntarily  relinquished  without  the  animus  revertendi,  (as  is 
frequently  the  case  with  possession  taken  by  squatters,)  and  that  the 
subsequent  possession  of  the  defendants  was  acquired  by  mere  entry 
without  any  lawful  right. 

That  the  first  possession  should,  in  such  cases,  be  the  better  evi- 
dence of  right,  seems  to  be  the  just  and  necessary  inference  of  law. 
The  ejectment  is  a  possessory  action,  and  possession  is  always  pre- 
sumption of  right,  and  it  stands  good,  until  other  and  stronger  evi- 
dence destroys  that  presumption.  This  presumption  of  right  every 
possessor  of  land  has,  in  the  first  instance,  and  after  a  continued 
possession  for  twenty  years,  under  pretence  or  claim  of  right,  the 
actual  possession  ripens  into  a  right  of  possession  which  will  toll 
an  entry.  But  until  the  possession  of  the  tenant  has  become  so  ma- 
tured, it  would  seem  to  follow,  that  if  the  plaintiff  shows  a  prior 
possession,  and  upon  which  the  defendant  entered  without  its  having 
been  formally  abandoned,  as  derelict,  the  presumption  which  arose 
from  the  tenant's  possession  is  transferred  to  the  prior  possession 
of  the  plaintiff,  and  the  tenant,  to  recall  that  presumption,  must  show 
a  still  prior  possession,  and  so  the  presumption  may  be  removed  from 
one  side  to  the  other,  toties  quoties,  until  one  party  or  the  other  has 
shown  a  possession  which  cannot  be  overreached,  or  puts  an  end  to 
the  doctrine  of  presumptions  founded  on  mere  possession,  by  showing 
a  regular  legal  title,  or  a  right  of  possession. 

It  is  stated  in  Jenkins  (Cent.  p.  42)  that  "the  first  possession,  with- 
out any  other  title  serves  in  an  assize  for  land,"  and  the  assize,  like 
the  ejectment,  was  a  possessory  action.  In  Bateman  v.  Allen,  Cro. 
Eliz.  437,  it  was  ruled  that  the  plaintiff  was  entitled  to  recover  in 
ejectment,  when  it  was  found  by  special  verdict,  that  the  defendant 
had  not  the  first  possession,  nor  entered  under  title,  but  upon  the 
plaintiff's  possession.  In  Allen  v.  Rivingtori,  2  Saund.  Ill,  the  deci- 
sion is  still  more  strongly  and  pointedly  in  favor  of  the  force  in 
a  prior  possession.  A  special  verdict  was  taken  in  ejectment,  but 
Saunders  adds,  "that  the  matter  of  law  was  never  argued,  because 
it  appeared  upon  the  record  that  the  lessor  of  the  plaintiff  had  a 
priority  of  possession,  and  there  was  not  any  title  found  for  the 
defendant.  And  then  the  priority  of  possession  gives  a  good  title 
to  the  lessor  against  the  defendant,  and  it  was  adjudged  for  the 
plaintiff." 

In  the  present  case,  there  was  a  peculiar  force  attached  to  the 
prior  possession  on  which  the  plaintiff  relied.    There  was  a  descent 


Cll.  2)  EJECTMENT  59 

cast  during  its  existence,  and  the  infant  heirs  of  the  ancestor  were 
driven  from  the  actual  possession  by  a  pubhc  enemy,  who  destroyed 
the  improvements  on  the  property.  According  to  the  equity  of  the 
jus  postHminii,  the  law  revested  the  possession  in  the  heirs  on  the 
removal  of  the  hostile  force.  Ouster  by  the  enemy  ought  not,  of 
itself,  to  work,  in  legal  contemplation,  a  discontinuance  of  posses- 
sion. The  possession  was,  by  construction  of  law,  in  the  heirs  of 
J.  Teller,  until  an  actual  adverse  entry  in  1795,  upon  that  construc- 
tive possession. 

This  testimony  being  sufficient  to  entitle  the  plaintiff  to  recover, 
what  did  the  defendants  produce  in  opposition  to  it?  They  showed 
no  prior  possession,  nor  did  they  show  a  subsequent  adverse  posses- 
sion of  above  fifteen  years,  nor  did  they  show  title  in  themselves. 
The  effect  of  the  evidence  was  to  show  a  subsisting  title  out  of  the 
plaintiff;  and  if  the  deed  of  1753,  to  Mary  Van  Vleeck,  was  not 
genuine,  or,  if  genuine,  if  it  did  not  cover  the  premises,  (and  this 
was  the  better  conclusion,)  the  defendants  did  not  succeed,  unless 
it  be  as  to  two  eighths  of  the  premises,  and  for  that  portion  of  them 
the  verdict  was  not  taken. 

The  motion  to  set  aside  the  verdict  ought,  therefore,  to  be  denied 

Motion  denied.^ ^ 


GOODRIGHT  v.  RICH  &  GOVETT. 

(Court  of  King's  Bench,  1797.    7  Durn.  &  E.  327.) 

Ejectment  for  thirty  acres  of  land,  twenty  acres  of  meadow  and 
twenty  acres  of  pasture,  with  the  appurtenances,  situate  in  the  parishes 
of  Over  Stowey  and  Nether  Stowey,  in  the  county  of  Somerset. 
The  defendants  pleaded  the  general  issue,  and  entered  into  the  com- 
mon consent  rule  as  tenants.  The  cause  was  tried  before  Mr.  Justice 
Buller,  at  Taunton,  when  a  verdict  was  found  for  the  plaintiff,  sub- 
ject to  the  opinion  of  this  court  on  the  following  case.  The  lessor 
of  the  plaintiff  proved  his  title  to  certain  lands  in  the  parishes  men- 
tioned in  the  declaration  of  ejectment,  which  lands  were  called  Clut- 
some's,  Dunscombe's,  Landsey's  Breach,  Griddle's  Breach,  and  the 
Gore  Piatt,  which  were  the  premises  in  question.  The  defendants 
proved  that  they  were  not,  nor  ever  had  been  in  the  possession  of 
any  part  of  the  premises  in  question.  The  only  point  reserved  at  the 
trial  was,  whether  the  defendants  after  entering  into  the  conditional 
rule  could  be  permitted  to  prove  that  they  neither  were  or  had  been 
in  possession  of  the  premises,  which  the  plaintiff  by  the  evidence  had 
entitled  himself  to.     If  such  proof  on  the  part  of  the   defendants 

12  Newnam  v.  City,  18  Ohio,  32.3  (1849).  Accord.  Webb  v.  Phillips,  80  Fed. 
954,  9G0,  26  C.  C.  A.  272  (1897:  Ky.  law)  semble;  Sowder  v.  Heirs,  4  Dana 
(Ky.)  45G  (1836:  possession  immediately  before  wrongful  entry  enough  but 
possession  some  time  before  insufficient).  Contra. 


60  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

were  admissible,  a  nonsuit  was  to  be  entered;   otherwise  the  verdict 
was  to  stand.^* 

Lord  Ksnyon,  C.  J.     This  has  certainly  been  a  vexata  questio; 
when  I  went  the  circuit  as  counsel,  the  case  in  Buller's  Ni.  Pri.,  in 
which  it  was  said  "If  there  be  but  one  defendant  as  tenant  in  pos- 
session, the  plaintiff  need  not  prove  him  in  possession,"   was  sup- 
posed to  be  law;    and  when  a  case  afterward  came  on  before  me 
on  the  Home  Circuit  I  ruled  accordingly,  not  thinking  it  necessary 
to  prove  the  defendant  in  possession.     But  I  was  never  called  on  to 
consider  the  question   accurately   till   now ;    and   when  we   consider 
the  reason  of  the  thing,  it  seems  wonderful  that  any  question  could 
seriously  have  arisen  upon  this  subject.    Onjhe  trial  of  aa-fj erf me.nt 
_t_wo-4)irties  come  to  litigate  the  title  to  an  estate,  the  person  claiming, 
and  the  j)erson  who  is  supposed  to  withhold  improperly,  the  posses"-^ 
^iion:    but  as  soon  as  it  turns  out  that  the  latter  is  not  in  possession, 
'-'Tr^seems  lo  me  that  the  cause  is  ill  constituted  between  those  two 
"^persons.     The  prqceedingg^in  ejectment  jvere  instituted  in  order  to 
try  who  xsJentltled  Jo_the  po  of  an  estate ~6n 'title :    wlien  the 

•declaration  is  delivered  the  lessor  of~tHe  pTaihtTETclaTiTis  in  general 
terms  so  many  acres  of  land,  so  many  messuages,  &c.  which  com- 
municates but  little  intelligence  to  the  person  served  with,  the  declara- 
tion. If  the  latter  happened  to  be  in  possession  of  any  land  falling- 
within  the  description  of  the  declaration,  he  must  defend  in  order 
to  preserve  his  own  right;  then  it  would  be  unjust  that  a  verdict 
should  be  found  against  him  though  he  can  prove  a  title  to  every 
acre  of  land  of  the  parish  of  which  he  was  ever  in  possession ;  and 
yet  this  is  the  consequence  of  the  plaintiff's  argument.  Two  rules 
have  been  made  by  the  two  courts,  differing  indeed  in  words,  and, 
as  the  plaintiff  now  contends,  differing  also  in  substance.  In  the 
Common  Pleas  the  defendant  enters  into  the  consent  rule  as  to  all 
the  lands  in  his  possession :  then  on  that  rule  it  is  necessary  for  the 
plaintiff  to  prove  the  defendant  in  possession  of  the  land  that  he 
claims.  But  it  is  said  that  the  meaning  of  the  rule  of  this  court  is 
different:  I  should  be  extremely  sorry  to  find  that  in  a  fictitious 
proceeding,  instituted  for  the  more  easy  attainment  of  justice,  differ- 
ent rules  were  to  obtain  in  the  different  courts.  If  we  were  bound  to 
decide  in  this  case  in  favour  of  the  plaintiff,  it  would  be  necessary 
to  alter  the  rule  of  our  court  immediately.  This  point  however  .^me 
under  the  consideration  of  the  court  in  the.  case  reported  in  Wil-. 
son,^*  where  it  was  holden  that  the  plaintiff  must  prove  the  defendant 
in  possession;  and  I  think  that  that  case  was  properly  decided. 
Then  it  was  urged  that  two  cases  have  been  since  determined  at 
Nisi  Prius  ^*  the  other  way:    but  they  were  only  decisions  at  Nisi 

13  Arguments  of  counsel  omitted. 

14  The  case  in   Wilson  is   cited  in   the  argument  of  counsel  and  is  in  1 
Wilson,  220.    The  nisi  prius  cases  seem  to  have  been  unreported. 


Ch,   2)  EJECTMENT  61 

Prius,  where  perhaps  the  subject  was  not  so  well  considered,  and  tliey 
cannot  outweigh  the  authority  of  the  case  in  Wilson.     Therefore  on 
the  convenience  and  reason  of  the  thing,  and  considering  the  question 
in  every  point  of  view,  I^  am  of  opinion  that  the  plaintiff  must-  prov€-~ 
the  defendant  in  posseasion  of-that  which  he_jeeks,  to, take,  from  him,— 

"and^  that  the  contrary  practice  that  has  qbtaijiedJs-.jajrorig*!'' 

'^  Per  Curiam.    Judgment  of  nonsuit.^* 


SECTION  3.— NECESSARY  ALLEGATIONS 


DECLARATION  AND  NOTICE  IN  EJECTMENT. 

(2  Cbitty,  Pleadiug  [13th  Am.  Ed.]  p.  *877.) 

In  the  King's  Bench,   (or  "Common  Pleas.") 

Term,  Will.  4. 

(to  wit.)     Richard  Roe  was  attached  to  answer  John  Doe 


of  a  plea,  wherefore  he  the  said  Richard  Roe,  with  force  and  arms, 

&c.   entered   into     *     *     *     acres   of   arable   land,     *     *     * 

with  the  appurtenances,  situate  and  being  in  the  parish  of  

aforesaid,  in  the  county  of  aforesaid,  with  the  common  of 

pasture  thereunto  belonging  and  appertaining  which  A.  B.  had  de- 
mised to  the  said  John  Doe  for  a  term  which  is  not  yet  expired, 
and  ejected  him  from  his.  said  farm ;  and  other  wrongs  to  the 
said  John  Doe  did,  to  the  great  damage  of  the  said  John  Doe,  and 
against  the  peace  of  our  lord  the  now  king,  &c. — And  thereupon 
the  said  John  Doe,  by  E.  F.  his  attorney,  complains,  that  whereas 

15  The  concurring  opinions  of  Ashhurst,  Grose,  and  Lawrence,  J  J.,  are 
omitted. 

16  Smitii  V.  Mann,  1  Wilson,  220  (1748);  Fenn  v.  Wood,  1  B.  &  P.  573 
(1796) ;  Scissou  v.  McLaws,  12  Ga.  166  (1852)  semble ;  Eastin  v.  Rucker,  1 
J.  J.  Marsh.  (Ky.)  232  (1829)  semble;  Wallis  v.  Doe,  2  Sraedes  &  M.  (Miss.) 
220,  225  (1844);  Pickett  v.  Doe,  5  Smedes  &  M.  (Miss.)  470.  489,  43  Am.  Dec. 
523  (1845)  semble ;  Smith  v.  Doe,  10  Smedes  &  M.  (Miss.)  584  (1848)  semble ; 
Delaware,  etc.,  R.  R.  v.  Breckenridge,  55  N.  J.  Eq.  141,  145,  35  Atl.  756  (1896) 
semble ;  Cooper  v.  Smith,  9  Serg.  &  R.  (Pa.)  26,  31,  11  Am.  Dec.  658  (1822) ; 
McCanna  v.  Johnston,  19  Pa.  434  (1852) ;  Evarts  v.  Dunton,  Bravtou  (Vt.) 
70  (1817);  Cooley  v.  Penfield,  1  Vt.  244  (1828);  Stevens  v.  Griffith,  3  Vt. 
448,  455  (1831).  Accord.  McDaniels  v.  Reed,  17  Vt.  674,  678  (1845:  without 
discussion  or  citations).  Contra. 

If  the  land  were  unoccupied  the  action  could  only  be  maintained  by  having 
a  real  lease,  entry  and  ouster  by  a  casual  ejector  and  serving  notice  on  the 
person  claiming  title.     2  Tidd,   Practice  (2d  Am.  Ed.)   1201. 

And  under  the  statutes  similar  to  that  of  New  York,  given  above  at 
page  52,  if  the  lauds  are  unoccupied  and  the  defendant  clahiis  title  the  ac- 
tion lies.     Lockwood  v.  Drake,  1  Mich.  14  (1847). 

Of  course  ejectment  will  not  lie  for  anything  but  corporeal  realty.  It  will 
not  lie  for  easements.  Smith  v.  Wiggin,  48  N.  H.  105  (1868:  leading  case). 
See,  also,  15  Cyc.  2:^,  24.  No  doubt  it  would  not  lie  for  chattels.  Hill  v. 
Hill,  43  Pa.  521  (1862). 


62  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

the  said  A.   B.  on  the  day  of  ,   in  the  year 

of  the  reign  of  our  said  lord  the  king-,  at  the  parish  aforesaid, 
in  the  county  aforesaid,  had  demised  the  said  tenements,  with  the 
appurtenances,  to  the  said  John  Doe,  to  have  and  to  hold  the  same 
to  the  said  John  Doe,  and  his  assigns,  from  thenceforth,   (or  from 

the  day  of  ,  in  the  year  aforesaid)    for  and 

during,  and  unto  the  full  end  and  term  of  ,  from  thence  next 

ensuing,  and  fully  to  be  completed  and  ended. — By  virtue  of  which 
said  demise,  the  said  John  Doe  entered  into  the  said  tenements,  with 
the  appurtenances,  and  became  and  was  thereof  possessed  for  the 
said  term,  so  to  him  thereof  granted,  as  aforesaid. — And  the  said 
John  Doe,  being  so  thereof  possessed,  the  said  Richard  Roe  after- 
wards, to  wit,  on  the  day  and  year  aforesaid    (or,  on  the  

day  of  ,  in  the  year  aforesaid),  with  force  and  arms,  &c.  en- 
tered into  the  tenements  with  the  appurtenances,  in  which  the  said 
John  Doe  was  so  interested,  in  manner,  and  for  the  term  aforesaid, 
which  is  not  yet  expired  and  ejected  him  the  said  John  Doe  out  of 
his  said  farm,  and  other  wrongs  to  the  said  John  Doe,  and  against 
the  peace  of  our  said  lord  the  king;  whereof  the  said  John  Doe 
saith  that  he  is  injured,  and  hath  sustained  damage  to  the  value  of 
£50,,  and  therefore  he  brings  his  suit  &c. 
Mr.  C.  D.  (the  tenant  or  tenants  in  actual  possession.) 

I  am  informed  that  you  are  in  possession  of,  or  claim  title  to,  the 
premises  in  this  declaration  of  ejectment  mentioned,  or  to  some  part 
thereof,  and  I,  being  sued  in  this  action  as  casual  ejector  only,  and 
having  no  claim  or  title  to  the  same,  do  advise  you  to  appear  in 

next Term,  (or,  if  the  premises  lie  in  London  or  Middlesex, 

"on  the  first  day  of  next  Term,"  in  his  majesty's  Court  of 

King's  Bench,  wheresoever,  &c.  (or,  in  the  Common  Pleas,  "in  his 
Majesty's  Court  of  Common  Bench  at  Westminster")  by  some  at- 
torney of  that  court,  and  then  and  there,  by  rule  of  the  same  court,, 
to  cause  yourself  to  be  made  defendant  in  my  stead,  otherwise  I 
shall  suffer  judgment  therein  to  be  entered  against  me  by  default,  and 

you  will  be   turned   out  of  possession.     Dated   this  day   of 

,  A.  D.  .. 

Yours,  &c.  Richard  Roe. 


DECLARATION  IN  EJECTMENT. 

(Puterbaugh,  Common  Law  Pleading  and  Practice  [Stli  Ed.]  432.) 

In  the  Circuit  Court.  Term    19 

State     of     1 

County  of  j 

A.  B.,  plaintiff  by  E.  F.,  his  attorney,  complains  of  C.  D.,  defend- 
ant, of  a  plea  of  ejectment:  For  that  the  plaintiff,  on  the 


Ch.  2)  EJECTMENT  63^ 

day  of  ,  in  the  year  19 — ,  was  possessed  of  a  certain  parcel 

of  land,  with  the  appurtenances,  lying  in  the  county  of ,  afore- 
said, to  wit,  (here  describe  the  land,)  which  said  tenements  the  plain- 
tiff claims  in  fee:  And  the  plaintiff  being  so  thereof  possessed,  the 
defendant  afterwards,  to  wit,  on,  etc.,  entered  into  the  said  tene- 
ments, and  now  unlawfully  withholds  from  the  plaintiff  the  possession 
thereof;  to  the  damage  of  the  plaintiff  of  dollars,  and  there- 
fore he  brings  his  suit,  etc. 


RAWSON  V.  TAYLOR. 

(Supreme  Court  of  Maine,  1869.     57  Me.  343.) 

On  report. 

Real  action  for  the  recovery  of  the  possession  of  certain  land  de- 
scribed in  the  writ,  and  for  rent  thereof.  The  writ  set  out  an  estate 
in  fee  in  the  plaintiff. 

The  plaintiff  put  in  a  judgment  recorded  in  his  own  favor  in  March, 
1864,  against  Sarah  Brister,  and  a  levy  of  the  execution  issued  thereon 
upon  the  premises,  the  appraiser's  certificate  describing  the  estate 
set  off  as  the  "life-estate  of  Sarah  Brister,"  "to  hold  to  said  creditor, 
his  heirs  and  assigns,  for  and  during  the  natural  life  of  the  said  Sarah 
Brister." 

Appleton,  C.  J.  The  demandant  by  his  levy  on  his  execution 
against  Sarah   Brister  obtained  only  an  estate  during  her  Hfe. 

By  Rev.  St.  1857,  c.  104,  §  3,  the  demandant  is  required  to  "set 
forth  the  estate  he  claims  in  the  premises,  whether  in  fee-simple, 
fee-tail,  for  life  or  for  years;  and  if  for  life,  then  whether  for  her 
own  life  or  that  of  another,"  &c.  By  section  8,  if  the  demandant 
proves  that  he  is  entitled  to  such  estate  in  the  premises  as  he  has 
alleged,  and  had  a  right  of  entry  therein  when  he  commenced  his 
action,  he  shall  recover  the  premises,  unless  the  tenant  proves  a  bet- 
ter title  in  himself. 

In  the  declaration  the  demandant  claims  an  estate  in  fee.  His  proof 
utterly  fails  to  support  it.  The  action  cannot  be  sustained  without 
an  amendment.  As  none  is  asked  for,  the  plaintiff  must  become 
nonsuit. 

Plaintiff  nonsuit.^^ 

Kent,  Dickerson,  Barrows,  Danforth,  and  TaplEy,  JJ.,  con- 
curred. 

17  Almond  v.  Bonnell,  76  111.  536  (1875);  Butrick  v.  Tilton,  141  Mass.  93, 
6  N.  E.  563  (1SS6)  semble;  Goodall  v.  Henkel,  60  Mich.  382,  27  N.  W. 
556  (1886 :  but  see  Olin  v.  Henderson,  120  Mich.  149,  155,  79  N.  W.  178  [1899] 
holding  plaintiff  may  prove  possession  under  a  contract  to  buy  when  his  dec- 
laration alleges  a  fee  in  him) ;  Dunn  v.  Sullivan,  23  R.  I.  60.5.  51  Atl.  203 
(1902) ;  Royston  v.  Wear,  3  Head  (Tenn.)  8  (1859)  semhie ;  Malony  v.  Adsit, 
175  U.  S.  281,  288,  20  Sup.  Ct.  115.  44  L.  Ed.  163  (1899)  semble;  Roach  v. 
Blakey,  89  Va.  707,  17  S.  E.  228  (1893)  semble;  Jarrett  v.  Stevens,  36  W.  Va. 
445,  15  S.  E.  177  (1892).  Accord. 


64  PLEADINGS  IN   TORT  ACTIONS       J  (Part    1 

BUSH  V.  GLOVER. 

(Supreme  Court  of  Alabama,  1872.     47  Ala.  167.) 

Pkters,  J.^*  This  is  a  statutory  action  for  the  recovery  of  land, 
in  the  nature  of  action  of  ejectment.  The  suit  is  brought  on  a  title 
derived  from  a  sheriff's  deed.  The  complaint  was  demurred  to.  The 
statement  of  the  cause  of  action  is  in  the  following  words :  "The 
plaintiff  sues  to  recover  the  following  tracts  of  land :  The  north  half 
of  north-east  quarter  of  section  twenty-three,  the  north  half  of  the 
north-west  quarter  of  section  twenty-three,  the  east  half  of  the  north- 
east quarter  of  section  twenty-two,  the  south-west  quarter  of  the 
south-east  quarter  of  section  fourteen,  the  east  half  of  the  south- 
west quarter  of  section  fourteen,  the  north-west  quarter  of  the  south- 
east quarter  of  section  fourteen,  all  in  township  twelve,  range  two, 
west,  which  lands  were  sold  by  an  execution  against  the  said  defend- 
ant, as  his  property,  by  the  sheriff  of  Choctaw  county  aforesaid,  and 
purchased  by  the  plaintiff;  which  said  lands  the  said  defendant  un- 
lawfully withholds  from  the  plaintiff,  and  detains  the  same,  together 
with  five  hundred  dollars  for  the  detention  thereof."  The  grounds 
of  demurrer  were,  the  complaint  did  not  allege  "that  the  plaintiff 
was  in  possession  of  the  land,  according  to  the  form  laid  down  in 
the  Code,"  and  that  the  complaint  was  "otherwise  informal  and  insuffi- 
cient." This  demurrer  was  overruled.  And  the  defendant  pleaded 
not  guilty,  and  went  to  trial  by  a  jury  on  this  plea.  It  further  ap- 
pears from  a  bill  of  exceptions  taken  on  the  trial  below,  that  the 
plaintiffs  derived  their  title  to  the  land  in  controversy  from  a  sheriff's 
deed,  made  under  authority  of  an  execution  issued  on  a  judgment 
of  the  circuit  court  of  Choctaw  county,  in  this  State,  rendered  at 
the  fall  term  thereof,  on  the  third  day  of  September,  1866.  This 
judgment  was  by  default.  And  it  appeared  from  the  record,  that 
the  only  notice  which  the  defendant  had  of  the  proceedings,  was  the 
service  of  a  summons  purporting  to  have  been  issued  out,  of  the  cir- 
cuit court  of  the  said  county  of  Choctaw,  on  the  8th  day  of  February, 
1861,  upon  a  complaint  founded  on  a  promissory  note  made  on  the 
1st  day  of  January,  1860,  for  the  payment  of  $385.  It  also  appeared 
that  the  plaintiff  in  said  suit  had  died  after  the  commencement  of 
the  same,  and  that  it  had  been  revived  on  the  day  judgment  was 
rendered  in  the  name  of  his  personal  representative,  who  had  been 
appointed  as  such  representative  by  the  rebel  probate  court  sitting 
in  said  county  of  Choctaw  in  1863.  And  for  these  reasons,  the 
judgment  of  the  3rd  of  September,  1866,  was  objected  to  by  the 
defendant  in  this  suit,  on  the  trial  below;  but  the  objection  was 
overruled  by  the   court,   and   the  said  defendant   excepted.     There 

18  Part  of  the  opinion  omitted. 


i 


Ch.  2)  EJECTMENT  65 

were  many  other  objections  made  during  the  trial,  and  reserved  in 
the  bill  of  exceptions,  which  need  not  be  more  particularly  enumer- 
ated. On  the  trial  below  there  was  a  verdict  and  judgment  for  the 
plaintiffs,  and  the  defendant  in  that  court  brings  the  case  here  on 
appeal. 

The  demurrer  to  the  complaint  will  be  first  considered.  This  is 
an  action  for  the  recovery  of  the  possession  of  lands,  instituted  under 
the  statute.  In  such  case,  the  Code  directs  how  the  suit  shall  be 
brought,  and  prescribes  that  in  such  cases,  the  law  now  in  force 
in  relation  to  actions  of  ejectment,  except  so  far  as  relates  to  the 
fictitious  proceeding  therein,  or  except  so  far  as  the  same  is  changed 
by  the  Code,  is  applicable  thereto. — Rev.  Code,  §  2610.  In  this  stat- 
utory action,  it  is  sufficient  for  the  plaintiff  to  allege  in  his  complaint, 
that  he  was  possessed  of  the  premises  sued  for,  describing  the  same 
by  its  description  at  the  land  office;  or  when  that  cannot  be  done, 
by  metes  and  bounds,  or  other  appropriate  designation,  and  that  after 
his  right  accrued,  the  defendant  entered  thereupon,  and  unlawfully 
withholds  and  detains  the  same. — Rev.  Code,  §  2611.  The  language 
in  itahcs  is  carried  into  the  form  of  complaint  prescribed  in  the 
the  schedule  of  forms  appended  to  the  Code.  The  form  there  given 
is  as  follows:    "The  plaintiff  sues  to  recover  the  following  tract  of 

land:     < — ,  of  which  he  zvas  possessed  before  the  commencement 

of  this  suit,  and  after  such  possession  accrued,  the  defendant  en- 
tered thereupon,  and  unlawfully  withholds  and  detains  the  same,  to- 
gether," &c. — Rev.  Code,  p.  677,  App.  of  Forms.  A  comparison 
will  show  that  the  portion  of  the  statute  and  the  above  cited  form 
printed  in  italics  is  left  out  of  the  complaint  in  this  case.  Such  a 
defective  complaint  does  not  bring  the  statement  of  facts  neces- 
sary in  such  a  pleading  within  the  requirements  of  the  statute,  either 
in  words  or  in  substance.  It  is  therefore  insufficient. — Rev.  Code, 
§  2629.  The  complaint  also  fails  to  show  that  the  lands  sued  for  are 
situated  in  this  State,  with  any  technical  degree  of  certainty.  The 
demurrer  ought,  therefore,  to  have  been  allowed,  and  the  court  erred 
in  overruling  it.  Nor  is  the  complaint  in  this  case  sufficient  as  a 
declaration  at  common  law  in  an  action  of  ejectment. — 1  Chit.  PI. 
p.  187,  marg.;  2  ib.  pp.  877,  878;  3  Bla.  Com.  p.  199,  marg.;  3 
ib.,  app.  No.  II,  p.  356;    Rev.  Code,  §  2621.     *     *     * 

For  the  error  first  above  pointed  out  the  judgment  of  the  court 
below  is  reversed  and  remanded,  with  instructions  to  sustain  the 
demurrer  to  the  complaint,  and  to  permit  the  plaintiff  in  the  court 
below  to  amend  his  complaint  as  may  be  allowed  by  law.^' 


19  Possession  by  the  plaintiff  must  be  alleged.  Parr  v.  Van  Horn,  38  ni. 
226  (1865)   semble. 

An  allegation  of  entry  by  the  defendant  or  ouster  of  the  plaintiff  is  nec- 
essarj'.     Roberts  v.  Niles,  05  Me.  244,  49  Atl.  1043  (1901:    writ  of  entry)  sem- 

Whit.C.L.Pl.— 5 


66  PLEADINGS   IN  TORT  ACTIONS  (Part    1 


SECTION  4.— DEFENSES 


GENERAL  ISSUE  IN  EJECTMENT. 

(3  Chitty.  Pleading  [13th  Am.  Ed.]  p.  *1141.) 

In  the  King's  Bench  (or  "C.  P.") 

^  j^  ^  Term,  Will.  4. 

ats. 
John  Doe,  on  Demise  of 

A.  B.  and  Others. 

And  the  said  C.  D.  by  E.  F.,  his  attorney,  comes  and  defends  the 
force  and  injury,  when,  etc.,  and  says,  that  he  is  not  guilty  of  the  said 
supposed  trespass  and  ejectment  (or,  if  several  ousters  are  laid  in 
the  declaration,  "of  the  said  supposed  trespasses  and  ejectments") 
above  laid  to  his  charge,  or  of  any  part  thereof,  in  manner  and 
form  as  the  said  John  Doe  hath  above  thereof  complained  against 
him;  and  of  this  he  the  said  C.  D.  puts  himself  upon  the  country,  etc. 


SPECIAL  PLEA  AND  GENERAL  ISSUE  IN  EJECTMENT. 

(Puterbaugh,   Common   Law   Pleading  and   Practice   [8th  Ed.]   436.) 
In  the  ^  ; Court  ^^^^^  19_^ 

CD.] 

ats,     Ejectment. 
A.  B.  J 

And  the  defendant,  by  G.  H.,  his  attorney,  comes  and  defends  the 
wrong  and  injury,  when,  etc.,  and  says  that  he  is  not  in  possession 
of  and  does  not  claim  and  has  not  entered  upon  or  been  in  posses- 
sion of  or  claimed  any  part  of  the  lands  in  the  said  declaration 
described,  except  the  following  described  lands,  to  wit,  (describe 
same)  ;  and  as  to  all  the  other  land  in  said  declaration  described 
this  defendant  here  and  now  disclaims  any  and  all  right,  title  or  in- 
terest thereto. 

ble.  Accord.  Gale  v.  Hines,  17  Fla.  773  (1880:  allegation  of  detention  by  de- 
fendant is  sufficient)  semble.  Contra. 

Detention  by  the  defendant  must  be  alleged.  Whipple  v.  McGinn,  18  R. 
I.  55,  25  Atl.  652  (1892). 

That  the  defendant  was  in  possession  when  suit  was  begun  must  be  alleged. 
Stevens'  Adm'r  v.  Griffith,  3  Vt.  448,  455  (1831)  semble. 

The  same  declaration  may  be  used  whether  the  defendant  is  in  possession 
or  merely  claims  title.  Dickerson  v.  Hendryx,  88  111.  66  (1878)  semble;  Soutb 
Park  V.  Gavin,  139  111.  280,  288,  28  N.  E.  S2G  (1891)  semble. 


Ch.  2)  EJECTMENT  67 

And  for  a  further  plea  in  this  behalf  this  defendant  says,  that  as 
to  the  said  (describing  lands  as  to  which  no  disclaimer  is  made), 
in  said  declaration  mentioned,  he  is  not  guilty  of  unlawfully  with- 
holding the  same,  or  any  part  thereof  in  manner  and  form  as  in 
said  declaration  alleged;  and  of  this  he  puts  himself  upon  the  coun- 
try, etc. 


BERNARD  et  al.  v.  ELDER  et  al. 
(Supreme  Court  of  Mississippi,  1874.     50  Miss.  336.) 

SiMRALL,  J.^°  delivered  the  opinion  of  the  court. 

This  was  an  action  of  ejectment  brought  by  the  plaintiff  in  error, 
to  recover  possession  of  a  parcel  of  land  on  the  bay  of  Boboxi. 

The  defendant  pleaded  ^the  general  issue,  and  several  pleas,  set- 
ting up  the  statute  of  limitations  of  seven  and  ten  years  (and  other 
matters  not  necessary  to  be  stated),  in  bar  of  the  action. 

To  these  pleas  there  were  demurrers.  To  some  of  the  pleas  the 
demurrers  were  sustained,  and  overruled  as  to  others. 

These  rulings  of  the  circuit  court  are  assigned  for  error. 

At  the  common  law  th^  Hpfprirlant  was  p^ffflttted-to-make  defense 
upon  the  terms  that  hejentered  into  the  consent  ruk 
tlie  sfeneral"  issue.     No  other  plea  was  ■admi.ssible. 


tne  g€ 
— ^TTie 


le  statute,  in  dispensing  with  the  fictions  which  pertained  to 
the  common  law  action,  still  confined  the  defendant  to  the  plea  of 
not  guilty.  CodeJjST^  p.  386.  art.  3.  under  which  he  ''may  give 
in__evidence  anv~TawfiiT  defensje  JjOLJ±ie-.-actiQrL/i  except  that  if  tliL. 
defendant  shall  _desire_ to  dis^pute,jQX-AenyLjiis_j)QSSLession-at  the^jcoiru. 
Iriencement^f^  the^actjonj_he_m^yL_d^  See  art  8, 

"p7387.  This  modification  became  necessary  because  of  the  5th  art, 
which  made  the  plea  of  general  issue  have  the  effect  of  an  admission 
that  the  defendant  was  in  possession  "at  the  time  of  the  commence- 
ment of  the  action." 

The  action  then,  as  regulated  by  statute,  admits  all  defenses  under 
the  "plea  of  not  guilty,"  except  the  single  one  of  nonpossession  which 
must  be  made  by  special  plea. 

All  the  matters  relied  upon  in  the  several  special  pleas  were  avail- 
able under  the  general  issue.  Indeed,  the  statute  dispensed  with 
special  pleading,  with  the  exception  above  named.  It  would  have 
been  proper  for  the  court  to  have  ordered  these  pleas  to  have  been 
withdrawn  from  the  files,  or  to  have  sustained  the  demurrers  to  them, 
as  alien  to  this  form  of  action.  It  is  not  necessary  therefore*  to  con- 
sider their  merits,  or  the  decisions  of  the  court  upon  them.     ♦     *     * 

The  judgment  is  therefore  affirmed.^^ 

20  statement  of  facts  and  part  of  the  opinion  omitted. 

21  That  generally  no  special  pleas  are  proper  in  ejectment,  see:  Barco 
V.  Fennell,  24  Fla.  37S,   5   South.   9   (ISSS:    that  land  in  process  of  admin- 


68  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

GUMMING  et  al.  v.  BUTLER. 
(Supreme  Court  of  Georgia,  1849.     6  Ga.  88.) 

Ejectment,  in  Bryan  Superior  Court.  Motion  to  dismiss  defendant's 
plea,  decided  by  Judge  Fleming,  at  Ghambers,  Dec.  22d,  1848. 

An  action  of  ejectment  was  commenced  in  Bryan  Superior  Gourt,  re- 
turnable to  April  Term,  1848,  for  a  certain  tract  of  land,  known  as 
Sandy  Hill. 

At  the  first  term,  James  M.  Butler,  the  alleged  tenant,  filed  the  fol- 
lowing pleas : 

"And  now,  at  this  term,  comes  the  defendant,  James  M.  Butler,  in 
his  proper  person,  the  force  and  injury  when,  &c.  and  says  that  he 
is  not  guilty  of  the  said  trespasses  in  ejectment,  as  above  laid  to  his 
charge,  and  of  this  he  puts  himself  upon  the  country. 

"And  for  further  plea  in  this  behalf,  the  said  James  M.  Butler  says, 
that  at  the  time  of  the  commencement  of  the  aforesaid  action  in  this 
behalf,  against  him,  he  was  not  in  possession  of  the  said  premises,  in 
the  said  plaintiff's  declaration  mentioned,  or  any  part  thereof,  nor  did 
he  then  or  now  claim  any  right,  title,  interest,  property  or  possession 
of,  in  or  to  the  said  premises,  but  that  the  said  premises  are  the  prop- 
erty of,  and  claimed  and  held,  by  one  John  Bailey,  of  the  Gounty  of 
Mcintosh,  in  the  State  of  Georgia;  and  further,  that  the  said  James 
M.  Butler  disclaims  all  right,  title,  interest,  possession,  property,  claim 
or  demand  of,  in  or  to  the  said  within  mentioned  premises,  or  any  part 
thereof;  and  of  these  several  matters,  he  puts  himself  upon  the  coun- 
try. 

"[Signed]  James  M.  Butler, 

"In  Proper  Person." 

At  the  trial  term  of  said  cause,  the  plaintiff,  by  his  counsel,  moved 
to  dismiss  and  set  aside  the  said  pretended  pleas,  and  to  enter  a  judg- 
ment by  default,  against  the  casual  ejector — 

1st.  Because,  that  part  of  it  purporting  to  be  the  general  issue,  did 
not  confess  lease,  entry  and  ouster. 

2nd.  Because  the  second  part  of  said  paper  is  wholly  inconsistent 
with  the  general  issue,  and  ought  not  to  be  allowed  to  stand. 

3rd.  Because  the  latter  part  of  said  pretended  plea,  being  special  in 
its  character,  could  only  have  been  filed  by  leave  of  the  Gourt;  and 
being  dilatory  in  its  character,  even  though  it  had  been  put  in  by  leave 

istration  and  so  ejectment  improper;  also  held  no  defense  In  substance) 
semble ;  Roosevelt  v.  Hungate,  110  111.  595  (1884 :  title  in  defendant)  semble ; 
Chaplin  v.  Barker,  53  Me.  275  (1SG5 :  insufficient  right  in  plaintiff) ;  Wood  v. 
Jackson,  8  Wend.  (N.  Y.)  9,  35,  40,  22  Am.  Dec.  603  (1831 :  former  recovery ; 
before  New  York  statutes) ;  Proprietors  v.  Horton,  6  Hill  (N.  Y.)  501  (1844 : 
matter  in  abatement  even ;  after  New  York  statutes) ;  Black  v.  Tricker,  52 
Pa.  436  (1866 :  coverture  of  defendant) ;  Pillow  v.  Roberts,  13  How.  472, 
14  L.  Ed.  228  (1851 :  sale  for  taxes  and  statute  of  limitations ;  Arkansas  law) ; 
Reynolds  v.  Cook,  83  Va.  817,  825,  8  S.  E.  710,  5  Am.  St  Rep.  317  (1887: 
pleas  in  abatement  an  exception). 


i 


Ch.  2)  EJECTMENT  69 

of  the  Court,  it  should  have  been  passed  upon  and  disposed  of  by  said 
Court,  at  the  first  term. 

4th.  That  the  whole  of  said  paper  was  contrary  to  the  rules  of  plead- 
ing, and  illegal;  and  if  special  circumstances  authorized  its  admission, 
the  existence  of  such  special  circumstances  should  have  been  shown 
at  the  first  term. 

Plaintiff's  counsel  further  moved  the  Court,  if  the  latter  part  of 
the  plea  was  ruled  illegal,  that  said  Butler  should  be  ruled  to  trial  on 
the  general  issue. 

The  presiding  judge  overruled  the  motion,  and  decided  that  said 
Butler  should  have  his  option  to  go  to  trial  on  the  first  part  of  his 
plea,  as  the  general  issue,  or  on  the  latter  part  of  said  paper,  if  veri- 
fied by  affidavit. 

The  defendant's  counsel  struck  out  the  first  part  of  the  plea,  and 
went  to  trial  upon  the  latter  part,  (verified  by  the  affidavit  of  defend- 
ant), upon  the  question  of  possession  alone,  the  Court  confining  the 
testimony  to  that  question. 

The  Jury  failing  to  return  a  verdict,  a  mis-trial  was  ordered,  and  by 
consent,  it  was  ordered  that  plaintiff's  motion  to  dismiss  the  plea  and 
take  judgment  by  default,  should  be  re-argued  before  Judge  Fleming, 
at  Cham.bers. 

Upon  which  hearing,  the  motion  was  overruled. 

The  Court  deciding  that  said  Butler  was  properly  before  the  Court 
on  the  plea  denying  his  possession,  and  that  said  plaintiff  was  prop- 
erly ruled  to  trial,  on  said  plea — which  decisions  are  excepted  to. 

By  the  Court. — Lumpkin,  J.,  delivering  the  opinion. 

Lord  Coke  deemed  special  pleading  so  delightful  a  science,  that  its 
very  name  was  derived,  according  to  him,  from  its  pleasurable  nature. 
"Quia  bene  placitare  omnibus  placet."  My  brethren,  who  were  en- 
gaged in  the  management  of  this  case,  in  the  Circuit  Court,  will  par- 
don me  for  suggesting,  that  they  seem  intent  on  restoring  this  exquisite 
recreation  to  its  pristine  state. 

Had  a  motion  been  made  to  dismiss  this  writ  of  error,  as  having 
been  prematurely  brought,  it  must  have  been  sustained.  No  final  judg- 
ment has  been  rendered  in  the  cause,  below.  There  being  a  mis-trial, 
all  the  issues  of  law  and  fact,  are  still  pending,  and  the  presumption  is, 
they  will  be  correctly  adjudicated. 

The  origin  and  growth  of  the  action  of  ejectment  will  be  found 
fully  stated  by  Mr.  Sergeant  Adams,  in  the  opening  chapter  of  his 
Treatise  on  Ejectment.  It  is  an  action  in  which  a  tenant,  for  a  term 
of  years,  claims  damages  for  a  forcible  ejection  or  ouster  from  the  land 
dem.ised.  It  was  invented  in  the  reign  of  Edward  II.  or  Edward  III. 
to  enable  suitors  to  escape  from  the  thousand  niceties  in  which  real 
actions  were  embarrassed ;  and  which,  moreover,  were  cognizable  in 
the  Courts  of  Common  Pleas  only.  Real  actions  have  been  abolished, 
ejectment  is  the  regular  mode  of  proceeding,  for  the  trial  of  possessory 
titles.     Anciently,  damages  only  were  recoverable — sv«b<feqi^.nt^y,  the 


70  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

land  itself.    It  is  needless  to  add,  that  this  form  of  action  is  entirely 
fictitious.    It  is  thus  described  and  illustrated  by  Lord  Mansfield : 

"An  ejectment  is  an  ingenious  fiction,  for  the  trial  of  titles  to  the 
possession  of  land.  In  form,  it  is  a  trick  between  two,  to  dispossess  a 
third,  by  a  sham  suit  and  judgment.  The  artifice  would  be  criminal, 
unless  the  Court  converted  it  into  a  fair  trial  between  the  proper  par- 
ties. The  great  advantage  of  this  fictitious  mode  of  proceeding  is,  that 
being  under  the  control  of  the  Court,  it  may  be  so  modelled  as  to  an- 
swer in  the  best  manner,  every  end  of  justice  and  convenience.  The 
control  which  the  courts  have  over  the  casual  ejector,  enables  them  to 
put  any  terms  upon  the  plaintiff  which  are  just.  He  was  soon  ordered 
to  give  notice  to  the  tenant  in  possession.  When  the  tenant  in  pos- 
session asked  to  be  admitted  defendant,  the  Court  was  enabled  to  im- 
pose conditions ;  and  therefore,  obliged  him  to  allow  the  fiction,  and 
go  to  trial  upon  the  real  merits,  without  being  entangled  in  the  nice- 
ties of  pleading  on  either  side.    Fairclaim  v.  Shamtitle,  3  Burr.  1294. 

(1)  Four  things  are  necessary  to  enable  a  person  to  support  an  eject- 
ment, viz :  title,  lease,  entry  and  ouster.  And  as  the  three  latter  are 
only  feigned  in  the  modern  practice,  the  plaintiff  would  be  non-suited 
at  the  trial,  if  he  were  obliged  to  prove  them.  The  Courts,  therefore, 
compel  the  defendant  to  enter  into  what  is  called  the  consent  rule,  by 
which  he  undertakes  that  at  the  trial  he  will  confess  the  lease,  entry 
and  ouster  to  have  been  regularly  made,  and  rely  solely  upon  the  mer- 
its of  his  title.  In  England,  at  present,  the  consent  rule  admits  posses- 
sion also.  The  consent  rule  is  presumed  to  be  taken  in  every  case, 
and  being  at  best  but  a  useless  form,  its  observance  is  dispensed  with 
in  point  of  fact;  and  this  dispenses  with  all  special  pleading  in  eject- 
ment. ^rhe_^efendant  can  _pl.ead^  onlx,!^ot  guilty,"  and_th£..  Statute  af 
Limitations. 

(2)  V/ith  us  in  Georgia,  as  in  most  of  the  states,  the  general  issue 
in  ejectment  denies  the  defendant's  possession,  as  well  as  the  plaintiff's 
title.     Stevens  v.  Griffith,  3  Vt.  448. 

It  was   not  necessary,   therefore,   in  this  case,  that  the  defendant^ 
sHould  have  ^jgaded  specially^thatJie_:aLaS- rint  jp  pn-^'^p'^.sinn  nf  fh^ 

•^femTseTln^djsputg^^"  ^^^  timf^  c;ni<-  wag^ruTunpnrpH — And  yet  it  was 
not  competent  for  the  plaintiff,  on  the  other  hand,  to  demur  to  this 
plea.  At  most,  it  was  but  an  act  of  supererogation.  The  defendant 
did  more  than  duty  required  of  him.  The  Court  was  wrong  in  com- 
pelling the  defendant  to  elect  between  these  pleas,  and  in  sending  him 
to  the  jury,  upon  the  question  of  possession  alone.  The  Court  might 
very  properly,  for  the  symmetry  of  its  records,  have  directed  this  su- 
pernumerary plea  to  have  been  stricken  out  as  surplusage. 

It  is  true,  that  if  the  verdict  had  been  for  the  defendant,  it  would 

'  have  ended  the  case ;  but  if  the  finding  had  been  for  the  plaintiff,  upon 
this  issue  of  possession,  still  he  would  have  to  show  title  in  himself, 
before  he  could  have  recovered.  Under  our  system  of  appeals,  there- 
fore, this  mode  of  procedure  might  have  involved  four  trials  instead 


Ch.  2)  EJECTMENT  71 

of  two;   and  for  this  reason,  if  no  other,  the  practice  should  be  dis- 
countenanced. 

Let  the  cause  be  remanded,  and  further  proceedings  be  had,  in  con- 
formity with  this  opinion.^* 


DICKERSON  V.  HENDRYX. 
(Supreme  Court  of  Illinois,  1878.     88  111.  6G.) 

Appeal  from  the  Circuit  Court  of  McLean  county. 

This  was  an  action  of  ejectment,  brought  in  the  McLean  circuit 
court  by  Frederick  Hendryx  against  Henry  C.  Dickerson,  Robert 
Lowry  and  Charles  Craig,  for  the  recovery  of  the  north-west  quarter 
of  section  20,  in  township  23  north,  range  4  east  of  the  third  principal 
meridian. 

The  declaration  alleged  in  substance  that  the  plaintiff,  on  April  20, 
1874,  was  possessed  of  the  land,  which  he  claims  in  fee,  and  being 
possessed  thereof,  the  defendants  afterwards,  on  April  20,  1874,  en- 
tered into  said  tenements,  and  now  unlawfully  withhold  from  the  plain- 
tiff the  possession  thereof,  to  the  damage,  etc. 

The  plea  of  not  guilty  was  interposed  by  all  the  defendants,  and  the 
defendant  Dickerson  filed  the  following  two  special  pleas,  verified  by 
his  affidavit: 

1.  Actio  non,  because  he  says  at  the  said  time,  when,  etc.,  and  at 
the  time  of  commencing  this  suit,  he  was  not  in  possession  of  said 
premises  in  controversy  or  of  any  part  thereof,  etc. 

2.  Actio  non,  because  the  defendants  were  not  in  the  possession  and 
occupation  of  said  premises  in  manner  and  form  as  the  plaintiff  has 
above  complained  against  them. 

The  plaintiff  filed  a  demurrer  to  the  special  pleas,  which  the  court 
sustained.  The  cause  was  tried  by  the  court,  who  found  for  the  plain- 
tiff, and  rendered  judgment  accordingly,  refusing  a  motion  for  a  new 
trial.    Dickerson  alone  appealed. 

Mr.  Chief  Justice  Scholfield  ^^  delivered  the  opinion  of  the  Court: 

The  chief  question  for  our  determination  on  this  record  is,  did  the 

circuit  court   err  in  sustaining  demurrers  to  the  two   special   pleas? 

They  profess  to  answer  the  whole  declaration,  yet  they  put  in  issue 

only  the  possession  and  occupation  of  the  premises. 

2  2  McCanna  v,  Johnston,  19  Pa.  434  (1852) ;  Stevens  v.  Griffith,  3  Vt.  448, 
455  (1831).  Accord.     Ulsh  v.  Strode,  13  Pa.  433  (1&50).  Contra. 

But  under  modern  statutes  there  must  he  a  special  plea  denying  defend- 
ant's possession.  Edwardsville  Co.  v.  Sawyer.  92  111.  377  (1S79) ;  James  v. 
Broolvs,  6  Heisk.  (Tenn.)  150,   157  (1871)  semble. 

A  plea  of  "nul  disseisin"  to  a  writ  of  entry  does  not  deny  that  the  de- 
fendant is  in  possession.  Gibson  v.  Bank,  69  Me.  579,  581  (1879)  semble; 
Alden  v.  Murdock,  13  Mass.  256,  259  (1816) ;   Mills  v.  Peirce,  2  N.  H.  9  (1819). 

23  Part  of  the  opinion  omitted. 


72  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

The  sixth  section  of  the  present  statute  relating  to  ejectment  (Rev. 
St.  1874,  p.  444,)  is  this:  "If  the  premises  for  which  the  action  is 
brought  are  actually  occupied  by  any  person,  such  actual  occupant  shall 
be  named  defendant  in  the  suit,  and  all  other  persons  claiming  title  or 
interest  in  the  same  may  also  be  joined  as  defendants."  The  seventh 
section  is :  "If  the  premises  are  not  occupied,  the  action  shall  be 
brought  against  some  person  exercising  act  of  ownership  on  the  prem- 
ises claimed,  or  claiming  title  thereto,  or  some  interest  therein,  at  the 
commencement  of  the  suit." 

But  whether  the  suit  be  to  recover  as  against  one  in  the  actual  oc- 
cupation or  possession  of  the  premises,  or  as  against  one  (the  premises 
not  being  occupied)  exercising  act  of  ownership  on  the  premises 
claimed,  or  claiming  title  thereto,  or  some  interest  therein,  the  form 
of  averment  required  in  the  declaration  is  the  same,  and  is  that  con- 
tained in  the  declaration  in  this  record.    Id.  §  11. 

It  is  provided,  however,  in  section  twenty-one,  that  "the  plea  of  not 
guilty  shall  not  put  in  issue  the  possession  of  the  premises  by  the  de- 
fendant, or  that  he  claims  title  or  interest  in  the  premises."  And  sec- 
tion twenty-two  is  as  follows :  "It  shall  not  be  necessary  for  the  plain- 
tiff to  prove  that  the  defendant  was  in  possession  of  the  premises,  or 
claims  title  or  interest  therein,  at  the  time  of  bringing  the  suit,  or  that 
the  plaintiff  demanded  possession  of  the  premises,  unless  the  defend- 
ant shall  deny  that  he  was  in  such  possession,  or  claims  title  or  interest 
therein,  or  that  demand  of  possession  was  made,  by  a  special  plea  ver- 
ified by  affidavit." 

It  is,  therefore,  obvious  if  defendants  were  claiming  title  or  interest 
in  the  premises  at  the  time  of  bringing  the  suit,  it  is  not  of  the  slight- 
est consequence  that  they  were  not  in  the  actual  occupation  or  posses- 
sion of  the  premises.  No  rule  in  pleading  is  better  settled  than  that 
a  plea  professing  to  answer,  the  whole  declaration,  which,  in  fact,  an- 
swers but  a  part,  is_obnoxious  to  demurrer.  Frink  v.  King,  3  Scam. 
144';  Hmton  v.  Husbands,  3  Scam.  187;  Buckmaster  v.  Beames,  4 
Oilman,  443 ;  Moir  v.  Harrington,  22  111.  40 ;  Goodrich  v.  Reynolds, 
31  111.  490,  83  Am.  Dec.  240.     *     *     * 

Judgment  affirmed.^* 


TAYLOR  V.  HORDE. 

(Court  of  King's  Bench,  1757.    1  Burr.  60.) 

In  ejectment  brought  in  Michaelmas  term,  1752,  by  John  Atkyns, 
Esq.  (in  the  name  of  Cyprian  Taylor)  against  Robert  Atkyns,  Esq.  the 
heir  at  law,  and  others;   upon  the  general  issue  pleaded,  and  the  is- 

2  4  South  Park  v.  Gavin,  139  111.  280,  289,  28  N.  B.  826  (1891)  semble. 
Contra. 


Ch.  2)  EJECTMENT  73 

sue  joined  thereon  and  tried  at  the  bar  of  this  court,  the  jury  find  a 
special  verdict. 

Lord  Mansfiei.d.2'  *  ♦  *  'j^j^g  second  general  question  is 
"whether  the  lessor  of  the  plaintiff  is,  by  the  statute  of  limitations, 
barred  from  recovering  in  this  ejectment." 

This  point  was  certainly  not  insisted  upon  at  the  trial :  and  there- 
fore the  special  verdict  is  not  adapted  to  it,  *  *  *  The  point  how- 
ever is  certainly  open,  upon  this  special  verdict. 

An  ejectment  is  a  possessory  remedy,  and  only  competent  where  the 
lessor  of  the  plaintiff  may  enter:  ,^her_eiQre_iLis..ahva^'^  necessar^y  -foe— 
the  plaintiff  to_shew.  thatjiis  lessor  had  a  right  to  enter;  by  proving  b__ 
possession  within  Jwenty  years,  or  accounting  fqrthe.  .want  of-li^  un- — 
dersome^oT  the  exceptions  allowed  by  the  statute^    Twenty-years'  ad-.  _ 
verse^possessToiiTs  a  positive  title  to  the  defendant :   it  is  not  a  bar  to — 
the  action  or  remeBy_oi_thej_lji.ntiff,  _Qnly_;  but  takes  away  his  right — 
of  possession,-,^ 

Every  plaintiff  in  ejectment  must  shew  a  right  of  possession,  as 
well  as  of  property :  and  therefore  the  defendant  needs  not  plead  the 
statute,  as  in  the  case  of  actions. 

_The  question  then  is,  wheth^er  it  appears  upon  this  special  verdict, 
"that_tlie_  lessor  of  the  plaintiff^  might  enter,  when  hp  brought  this_ 
ejectment."     *     *     *  ^ 

If  the  Dacres  had  no  estate  by  virtue  of. this  demise,  upon  the  9th 
of  October,  1712,  then  this  ejectment  was  not  brought  within  twenty 
years  after  the  lessor's  title  accrued :  and  no  facts  are  found,  to  ex- 
cuse him  within  any  of  the  exceptions. 

Therefore  we  are  all  of  opinion  that  there  should  be 

Judgment  for  the  Defendants. 

A  writ  of  error  was  brought  in  the  House  of  Lords;  and  came  on 
upon  Thursday  26th  January  1758.  The  counsel  agreed,  and  were  al- 
lowed, to  argue  the  last  point,  for  the  judgment  of  the  house,  first: 
because,  if  their  lordships  should  be  of  the  same  opinion  with  the  Court 
of  King's  Bench,  "that  this  ejectment  was  barred  by  the  statute  of  lim- 
itations," it  would  be  quite  unnecessary  to  go  into  the  first  question. 

All  the  judges  were  ordered  to  attend.  To  whom,  after  the  argu- 
ment at  the  bar  was  over,  the  house  proposed  the  following  question, 
viz.: 

"Whether  sufficient  appears  by  the  special  verdict  in  this  cause,  to 
prevent  the  lessor  of  the  plaintiff,  by  force  of  the  statute  of  limita- 
tions of  the  21st  of  King  James  the  First,  from  recovering  in  this 
ejectment." 

Whereupon,  the  Lord  Chief  Justice  Willes,  having  conferred  with 
the  rest  of  the  judges,  delivered  their  unanimous  answer,  "that  suffi- 
cient does  appear  by  the  special  verdict  in  this  cause,  to  prevent  the 

2  5  statement  of  facts  abridged  and  part  of  the  opinion  omitted. 


74  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

lessor  of  the  plaintiff,  by  force  of  the  statute  of  limitations  of  the  21st 
of  King  James  the  First,  from  recovering  in  this  ejectment." 

Then  the  judgment  of  the  Court  of  King's  Bench  was 

Affirmed,  with  £5.  costs. ^* 

2  6  Trowbridge  v.  Royce,  1  Root  (Conn.)  50  (1789);  Home  v.  Carter's  Adm'r, 
20  Fla.  45,  49  (188?^:  relying  on  statute);  Stubblefield  v.  Borders,  92  111. 
279,  287  (1879 :  same  as  last) ;  Stanley  v.  Perley,  5  Me.  369  (1828 :  writ  of 
entry);  Miller  v.  Beck,  68  Mich.  76,  35  N.  W.  899  (1888:  no  reasons  given); 
Wilson  V.  Williams,  52  Miss.  487,  492  (1876:  under  statute) ;  Gallagher  v. 
McNutt,  3  Serg.  &  R.  (Pa.)  *409  (1817) ;  Pillow  v.  Roberts,  13  How.  472,  14 
L.  Ed.  228  (1851:  Arkansas  law);  Hogan  v.  Kurtz.  94  IT.  S.  773,  775,  24  L. 
Ed.  317  (1876:   District  of  Columbia  law).  Accord. 


Ch.  3)  CASH  75 

CHAPTER  III 

CASE 


SECTION  1.— SCOPE  OF  THE  ACTION 


ZELL  V.  ARNOLD. 

(Supreme  Court  of  Pennsylvania,  1830.     2  Pen.  &  W.  292.) 

Appeal  from  the  Circuit  Court  of  Adams  county.  It  was  an  action 
on  the  case  brought  by  George  Arnold  the  appellee,  against  Jacob 
Zell  the  appellant  in  the  Court  of  Common  Pleas  of  that  county, 
and  removed  into  the  Circuit  Court. 

The  plaintiff  in  his  declaration,  counted  that  the  defendant  was 
a  mill-wright,  and  for  a  reasonable  reward,  and  consideration,  to 
be  thereafter  paid,  undertook  to  build  a  clover  mill,  and  carding 
machine,  and  to  level  and  grade  the  water  of  a  certain  rivulet  or 
brook  in  Betle's  meadow,  &c.  to  the  dam  of  the  plaintiff;  and  did 
then  and  there  undertake  and  agree  to  build  said  mills,  and  grade 
and  stake  off  said  race  in  a  skillful  and  correct  manner.  In  consid- 
eration of  the  promise  aforesaid,  &c.  yet  the  said  Zell,  then  and 
there  so  negligently,  carelessly,  and  unskill fully,  graded  and  laid  off 
said  race  and  water-course,  and  built  said  mills ;  and  so  inaccurately 
and  erroneously  governed  himself  therein,  and  for  want  of  due  care 
and  skill  on  the  part  of  the  said  Zell,  in  the  premises,  the  said  mills 
thus  built,  &c.  and  the  said  race  thus  dug,  &c.  cost  the  said  Arnold, 
more  money  than  if  the  same  had  been  skillfully  done;  and  are 
totally  useless  and  of  no  value  to  the  said  Arnold,  and  the  water 
will  not  flow  along  the  said  race  or  channel  to  the  said  dam  and  mills 
aforesaid,  whereby  said  plaintiff  is  entirely  deprived  of  the  use  of 
said  improvements,  by  him  as  aforesaid  made,  &c.  to  the  damage 
of  the  said  George  Arnold,  &c. 

And  in  the  second  count  of  the  said  declaration,  the  plaintiff 
counted  upon  a  promise  of  the  defendant  to  build  the  said  mills, 
and  to  level  the  fall  of  the  said  rivulet  or  brook,  and  to  report  the 
same  correctly  to  the  said  George;  and  to  mark  or  strike  off  the 
said  race  or  channel  to  convey  and  carry  the  water  from  said  brook, 
to  the  mill  dam  of  the  said  George.  And  that  the  said  Jacob,  did 
report  to  the  said  George,  that  there  was  a  fall  of  sixteen  inches 
from  the  bottom  of  the  stream  of  the  said  rivulet  to  the  surface  or 
top  of  the  mill  dam,  &c.  And  that  the  said  George,  giving  full  faith 
and  credit  to  the  report  of  the  said  Jacob,  &c.  did  expend  a  large 


76  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

sum  of  money,  &c.  in  the  purchase  of  land  and  in  digging  and  ex- 
cavating the  race,  &c.  and  in  building  the  said  mills,  &c.  Yet,  the 
said  Jacob,  did  then  and  there,  negligently,  carelessly,  and  unskill- 
fully,  level,  grade  and  lay  off  said  race,  &c.  and  build  said  mills, 
&c.  that  the  water  will  not  run  and  flow  in  and  along  and  through 
the  race  aforesaid,  in  and  to  the  top  or  surface  of  the  mill  dam  of 
the  said  George,  with  a  fall  of  sixteen  inches,  from  the  bottom  of 
the  same  rivulet  or  brook,  whereby  the  said  George  is  entirely  de- 
prived of  the  use  of  the  said  mill,  land,  &c.  by  him  purchased  and 
made,  &c.     To  the  damage  of  the  said  George,  &c. 

On  the  trial  of  the  cause,  a  verdict  was  rendered  for  the  plain- 
tiff, for  six  cents  damages,  whereupon  the  Court,  over-ruling  a  mo- 
tion made  to  enter  the  judgment  without  costs,  gave  judgment  for 
the  plaintiff  with  full  costs,  from  which  the  defendant  appealed; 
and  now  assigned  for  error,  that  the  Court  over-ruled  the  motion  made 
by  him,  and  gave  judgment  with  full  costs. 

Fuller,  Watts  &  Penrose,   for  the  appellant.^ 

*  *  *  By  the  act  of  the  20th  of  March,  1810,  section  26,  Purd. 
Dig,  p.  459,  it  is  provided,  that  if  any  person  shall  commence  any 
suit  for  a  debt  or  demand,  and  recover  less  than  one  hundred  dol- 
lars, when  the  cause  of  action  is  cognizable  before  a  justice  of  the 
peace,  he  shall  not  recover  costs.  By  the  first  section  of  that  act, 
Purd.  Dig.  p.  450,  what  causes  of  action  are  cognizable  before  a 
justice  of  the  peace,  are  ascertained.  They  are  "all  causes  of  action 
arising  from  contract,  either  express  or  implied,  in  all  cases  where 
the  sum  demanded  is  not  above  one  hundred  dollars."  The  ques- 
tion presented  is,  did  the  cause  of  action  upon  which  the  plaintiff 
declared,  arise  from  a  contract  either  express  or  implied?     *     *     * 

Gibson,  C.  J.  The  objection  at  the  Circuit  Court  was  that  the 
jury  had  not  found  costs  as  well  as  damages.  That  point  came  up 
in  Stores  v.  Tong,  Rep.  &  Ca.  of  Prac.  in  C.  B.  7,  in  which  it  was 
held  that  where  the  jury  are  ex  officio  bound  to  give  costs,  and 
omit  to  do  so,  the  Court  will  supply  the  deficiency.  Here  the  plain- 
tiff's right  to  costs  is  resisted  on  the  ground  that  the  cause  of  action 
was  cognizable  by  a  justice  of  the  peace.  The  declaration  is  in 
case ;  and  although  the  action  has  grown,  out  of  a  contract,  it  is 
not  necessarily  within  the  act  of  assembly.  No  other  contract  formed 
an  ingredient  in  the  subject  of  it,  than  that  implied  by  the  law,  which 
requires  any  one  employed  in  an  art  or  calling,  to  bring  to  the  busi- 
ness a  competent  share  of  diligence  and  skill.  The  gist_of  an  action  ^ 
on  the  caselikethe  present^  ^s_J^.^  ^  f  aJJLlIs  to  perform,  but  a  fail- 
"  tire  to  "perfornTrnT^a  workmanly  manner,__jyhich_.is  a  fnyt.  ^^later  v. 
rBal^i,  2  Wils.  G5try-1^F."i:?roenveIFFCase,Xd.  Raym.  214.  An  under- 
taking for  skill  and  diligence  is  implied  no  further  that  to  raise 
a  duty,  the  breach  of  which  is  the  gravamen  and  meritorious  cause 

1  Part  of  the  arguments  of  counsel  omitted. 


Oh.  3)  CASE  77 

of  the  action.     The  difference  Jbetweenaasumpsij:  which  is  an  action 

directly  on  the  Contract,  and  case  which  is  collateral  to  it,  is  shewn 

'1^rtE?j>leadings,  the  generaTissue  in  the_first_^bein£non__assuin^^ 

"and  in"~Ee~second,  not  guilty.    There  are  "sometiniesconcurrent  rem- 

'eHTesY  aTln  an  action  againsFa  carrier  who  may  be  made  to  respond 

either  immediately  on  the  contract  which  affords  a  specific  ground 

of  action,  or  on  the  custom  which  raises  a  duty  to  carry  the  goods 

safely;    and  as  the  one  or  the  other  form  is  adopted,  so  may  the 

count  be  joined  with  the  other  counts  sounding  in  contract  or  tort. 

Law  of  Carriers,  117.     In  all  cases  whejre. the  action  is  not  onjhfi 

contract,  but  for  the  breach  of  a  collateral  duty,  the  gist  is  _a-4i£r.- . 

~"ST5natTorfras~wh-ere  a  smith  pricks  a  horse  in  shoeing,  or  a  farrier 
crkills  him' by  bad  medicines  or  neglect:  and  it  is  emphatically  the 
gravamen  in  an  action  against  a  barber  for  barbering  his  customer 
negligenter  et  inartificialiter.  2  Bulstr.  333.  That  the  defendant's 
liability  arose  remotely  out  of  a  contract,  therefore,  is  by  no  means 
decisive  of  the  question.  As  was  said  in  Zeigler  v.  Gram,  13  Serg. 
&  R.  102,  the  legislature  had  in  view  a  contract  in  the  popular 
sense  of  the  word ;   not  an  artificial  agreement  depending  on  a  fiction 

of  law.     A^special  action  on  the_case  lies  for  what  is  substantially 

a  tort,  although  a  tort  deducible  from  the  existence  of  a  contract. 
~SiIc'h~was  not  wlfhin  the  view  of  the  legislature ;    and  we  are  sat- 
isfied  the  cause  of  action  here  was  not  a  subject  for  the  jurisdiction 
of  a  justice. 

Huston,  J. — Dissented. 
Judgment  affirmed.^ 

2  Godefroy  v.  Jay,  7  Bing.  413  (1S31 :  case  brought ;  no  question  raised) 
not  eveu  semble ;  Gladwell  v.  Steggall,  5  Bing.  N.  C.  733  (1839) ;  Brown  v. 
Boorman,  11  01.  &  F.  1  (1844) ;  Wilson  v.  Coffin,  2  Gush.  (Mass.)  316,  323 
(1S48) ;  Howe  v.  Coolv.  21  Wend.  (N.  Y.)  29  (1839)  semble :  Kuhn  v.  Brown- 
field,  34  W.  Va.  252,  2.")7,  12  S.  E.  519,  11  L.  R.  A.  700  (1890)  semble.  Accord. 

A  fortiori  if  the  defendant  was  exercising  a  common  employment  case 
will  lie.  Dickson  v.  Clifton,  2  Wilson,  319  (1766);  Ansell  v.  Waterhouse,  6 
M.  &  S.  385  (1817);  Nevin  v.  Pullman  Co.,  106  111.  222,  46  Am.  Rep.  688 
(1883);  Banlv  v.  Brown,  3  Wend.  (N.  Y.)  158  (1829);  McCall  v.  Forsyth,  4 
Watts  &  S.  (Pa.)  179  (1842) ;  Smith  v.  Seward,  3  Pa.  342  (1846) ;  So.  Exp.  Co. 
V.  McVeigh,  20  Grat.  (Va.)  204,  284  (1871);  Spence  v.  Railroad  Co.,  92  Va. 
102,  22  S.  E.  815,  29  L.  R.  A.  578  (1895).  Accord.  Boson  v.  Sandford.  3  Mod. 
321  (1086) ;    Powell  v.  Layton,  2  B.  &  P.  365   (1806).  Contra. 

Still  more  clearly,  if  the  act  of  the  defendant  would  have  been  a  tort  had 
no  contract  existed  at  all,  case  will  lie.  Govett  v.  Radmidge,  3  East,  62 
(1802) ;  Pittsburs  v.  Grier,  22  Pa.  54,  65,  60  Am.  Dec.  65  (1853) ;  Reeside  v. 
Reeside.  49  Pa.  322,  331,  88  Am.  Dec.  503  (1865)  semble;  Dean  v.  McLean, 
48  Vt.  412,  21  Am.  Rep.  130  (1875). 

See  further  6  Cyc.  688 ;   3  PI.  &  Pr.  817  et  seq. :   10  PI.  &  Pr.  1131. 

The  distinction  between  Case  and  Trespass  has  been  treated  under  Trespass. 


78  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

ROYCE  et  al.  v.  OAKES. 

(Supreme   Court  of  Rhode   Island,  1S9S.     20  R.   I.  418,   39  Atl.   758,  39  I* 

R.  A.  845.) 

Trespass  on  the  case  by  Royce,  Allen  &  Co.  against  Charles  H. 
Oakes.     Demurrer  to  an  amended  count  of  the  declaration  sustained. 

TiivLiNGHAST,  J.^  Since  the  rendition  of  the  former  opinion  in 
this  case,  sustaining-  the  demurrer  to  the  second  count  in  the  declara- 
tion (20  R.  I.  252,  38  Atl.  371),  the  plaintiffs  have  amended  said 
count  so  as  to  allege,  in  substance,  that  on  the  15th  day  of  January, 
1894,  they  authorized  and  empowered  the  defendant,  who  was  in  their 
employ  for  hire,  and  acting  as  their  agent  and  servant  in  this  behalf, 
to  collect  and  receive  for  them,  from  divers  debtors  of  theirs,  various 
sums  of  money,  amounting,  in  all,  to  the  sum  of  $1,714.60,  and  there- 
upon to  deliver  the  same  to  the  plaintiffs.  And  they  aver  that  the 
defendant  thereafter,  in  pursuance  of  said  authority,  collected  said 
sum  of  money,  and  that  thereupon  it  became  his  duty  to  pay  over 
the  same  to  the  plaintiffs ;  but  that,  not  regarding  his  duty  in  that 
behalf,  although  duly  requested,  intending  and  contriving  to  injure 
and  defraud  the  plaintiffs,  he  neglected  and  still  neglects  to  pay  said 
money  to  them.  And  the  plaintiffs  declare  that  said  refusal  was  neg- 
ligent, fraudulent,  and  in  violation  of  his  duty,  and  that  by  reason 
of  the  premises  they  are  deprived  of  the  possession  and  benefit  of 
said  money.  To  this  amended  count  the  defendant  has  demurred, 
on  the  grounds  (1)  that  the  cause  of  action,  if  any,  set  forth  therein, 
is  an  action  of  contract,  and  not  an  action  sounding  in  tort;  and  (2) 
that  the  injury  alleged  to  have  been  suffered  by  plaintiffs  has  been 
suffered  by  reason  of  the  commission  of  the  crime  .of  larceny,  and 
that  it  does  not  appear  that  any  criminal  complaint  has  been  made 
therefor. 

We  think  the  demurrer  should  be  sustained  on  the  first  ground. 
The   amended   count  differs    from   the   former  one,   which  we  held 
amounted  to  a  charge  of  embezzlement,  in  that  it  does  not  allege  a 
fraudulent   conversion  of  the   money  by  the   defendant   to   his   own 
use,  but  simply  alleges  a  breach  of  duty  in.  not  paying  over  the  same 
to  the  plaintiffs  after  demand  made  therefor.     In  other  words^  when 
stripped  of  its  formalities,  it  simply  shows  a  ckse  where  a  servant  or 
■^jSrgeht  has  coITecfe'd  money  for  Jiij  principal  and  neglected  to  pay.  it  , 
over  on-demand, — that  is,  a  case  of  moneyhad  ahd~"recerved  by  the^ 
defendant^to  tIie~plainHffs'   use, — and   hence  the  plaintiffs'   remedy, 
and  their' only  rernedy2.is_,b3r  assumpsit  or  debt     It  is  true^.jas-COiiC' 
tende^d  by  plaintiffs'  counsel,  that  the  action  of  trespass  on  the  case 
is  an  exceedingly  broad..and  compreliensive  form  of  action,  and  that* 
^itlieSjIrT'g-eneral,  vyherea  legal  injury  is  suffered  for  wh^iclLthe  conv:^ 

8  Part  of  the  opiniou  omitted. 


i 


Ch.  3)  CASH  7» 

mon  law  has  provided  no  adequate  remedy.  _26  Am.  &  Eng.  Enc. 
"Xaw,  699,  and  cases  in  note  5.  But,  in  a  case  like  the  one  set  out  in 
said  count,  the  common  law  has  provided  an  adequate  remedy  in  an 
action  of  assumpsit;  and  to  permit  the  plaintiffs  to  maintain  their 
action  of  trespass  on  the  case  would,  in  effect,  be  to  abolish  the  dis- 
tinction between  actions  sounding  in  tort  and  those  sounding  in  con- 
tract, and  enable  a  plaintiff  in  any  case,  where  money  has  been  had 
and  received  by  another  to  his  use,  to  sue  in  a  tort  action  for  its  re- 
covery. 

In  Orton  v.  Butler, '2  Chit.  343,  the  same  thing  was  attempted  un- 
der a  declaration  the  third  count  of  which  was  nearly  identical  with 
the  count  now  in  question,  except  that  there  the  plaintiff  stated  a 
stronger  case  by  alleging  a  conversion  of  the  money  received,  as 
the  plaintiffs  originally  did  in  the  case  at  bar.  In  sustaining  the  de- 
murrer to  the  third  count,  Abbott,  J.,  said :  "The  law  has  provided 
certain  specific  forms  of  action,  suited  to  the  recovery  of  damages, 
for  certain  peculiar  injuries.  We  have  a  smaller  variety  of  forms 
in  our  law  than  is  to  be  found  in  the  civil  law.  We  have  not  many, 
but  it  is  of  importance  that  those  we  have  should  be  preserved,  and 
that  parties  should  not  be  permitted,  by  their  own  invention,  to  con- 
vert that  which  from  the  earliest  times  has  been  considered  as  pe- 
cuHarly  the  subject  of  assumpsit  or  debt  into  an  action  of  tort.  We 
are  to  look  with  jealousy  at  any  innovation  of  that  kind,  so  that  noth- 
ing like  a  precedent  shall  be  established,  tending  to  destroy  those 
sound  distinctions  which  have  been  established  by  the  wisdom  of  our 
ancestors."  Best,  J.,  added :  "I  am  of  the  same  opinion.  This  is 
a  departure  from  all  precedents ;  and,  even  if  I  were  satisfied  that  it 
might  not  be  attended  with  inconvenience,  still  I  think  we  ought  not 
to  permit  any  innovation  upon  the  ancient  forms  of  proceeding,  which 
are  to  be  considered  as  part  of  the  settled  law  of  the  land.  As  well 
might  we  alter  the  doctrine  of  descents  as  to  freehold  property,  as 
alter  the  long-established  forms  prescribed  for  the  recovery  of  debts. 
We  are  not  at  liberty  to  do  so.  There  is  a  broad  distinction  between 
causes  of  action  arising  ex  contractu  and  ex  delicto.  This  is  one  aris- 
ing ex  contractu.  There  is  no  wrong  stated,  but  merely  a  breach  of 
contract ;  and  the  plaintiff  is  not  at  liberty  to  convert  a  mere  matter 
of  contract  into  a  tort.  The  consequences  of  a  departure  from  the 
ancient  forms  have  been  well  pointed  out  in  argument.  In  addition 
to  those  may  be  mentioned  that,  by  altering  the  remedy,  the  defend- 
ant would  be  deprived  of  his  plea  of  tender,  and  also  of  the  advan- 
tage of  paying  money  into  court.  But,  if  no  such  consequences  were 
to  follow,  I  think  we  ought  to  adhere  to  those  ancient  forms,  which 
have  been  perfected  by  the  wisdom  of  ages,  and  confirmed  in  their 
utility  by  the  experience  of  many  centuries." 

It  has  never  been  understood  by  the  bar  in  this  state  that  a  tort 
action  could  be  maintained  for  money  had  and  received,  even  though 


80  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

the  person  receiving  the  same  has  negligently  and  fraudulently  re- 
fused to  pay  over  the  same  to  the  person  to  whose  use  it  was  receiv- 
ed, or  has  even  converted  it  to  his  own  use,  except,  at  any  rate,  as 
provided  by  statute,  after  the  commencement  of  a  criminal  prosecu- 
tion. Gen.  Laws  R.  I.  c.  233,  §  16.  On  the  contrary,  the  understand- 
ing has  always  been  that  assumpsit  and  debt  are  the  only  actions  that 
can  be  employed  in  such  cases ;  and  we  think  this  position  is  clearly 
in  accordance  with  the  well-settled  rules  relating  to  common-law  ac- 
tions. The  authorities  cited  by  plaintiffs'  counsel  do  not,  in  our  judg- 
ment, sustain  his  position.  Thpy_^pre  mn.^l-ly  r^'^p's.  ni  negh'ger|C£_j£ll_ 
failing_to  jischarge  some  comnTOnrla:g_dllt^_arising  from  a  contract, 
"and^ence  are  proper  subjects  for_jtrespass  on_the^^se.  1  Chit.  Tl. 
^T^,  152^  The  celebrated  and  familiar  case  of  Coggs  v.  Bernard,  2 
Ld.  Raym.  909,  is  an  example.  Dickson  v.  Clifton,  2  Wils.  319,  was 
case,  for  undertaking  to  carry  and  deliver  some  malt  for  the  plain- 
tiff, and  for  so  carelessly  discharging  his  duty  that  the  malt  was  em- 
bezzled and  lost.  Elsee  v.  Gatward,  5  Term  R.  143,  was  tort,  for 
negligence  in  regard  to  the  use  of  new  material,  instead  of  old,  in 
the  repair  of  certain  buildings,  contrary  to  plaintiff's  order,  which 
the  court  held  to  amount  to  a  misfeasance,  and  hence  a  good  founda- 
tion for  the  action.  Brown  v.  Boorman,  11  Clark  &  F.  1  (see  3  Q. 
B.  511),  is  a  case  where  the  plaintiff  employed  defendant  as  a  broker 
to  sell  and  deliver  oil  for  cash,  but,  not  regarding  his  duty,  he  sold 
and  delivered  the  oil  without  obtaining  payment  therefor;  and  the 
court  held  that  case  was  a  proper  remedy,  although  the  duty  imposed 
upon  the  defendant  arose  out  of  an  express  contract.  That  decision 
gave  rise  to  the  supposition  that  every  action  for  a  breach  of  contract 
might  be  considered  as  an  action  of  tort.  But  in  the  subsequent 
case  of  Courtenay  v.  Earle,  10  C.  B.  73,  the  court  effectually  disposed 
of  that  impression;  Williams,  J.,  saying  that  the  judgment  in  the  for- 
mer case  by  no  means  warranted  such  a  conclusion,  and  that  the 
court  did  not  intend  to  overrule  the  case  of  Corbett  v.  Packingtqn, 
6  Barn.  &  C.  268.  In  the  last-mentioned  case,  one  count  in  the  dec- 
laration stated  that  the  plaintiff,  at  the  request  of  the  defendant,  had 
caused  to  be  delivered  to  him  certain  boars,  pigs,  etc.,  to  be  taken  care 
of  by  the  defendant  for  the  plaintiff,  for  reward,  and  that,  in  con- 
sideration thereof,  the  defendant  undertook  and  agreed  with  the 
plaintiff  to  take  care  of  the  boars,  etc.,  and  to  redeliver  the  same  on 
request;  and  it  was  held,  on  motion  in  arrest  of  judgment,  that  this 
was  a  count  in  assumpsit,  and  could  not  be  joined  with  counts  in 
case.  Jervis,  C.  J.,  in  referring  to  Brown  v.  Boorman,  in  the  case  of 
Courtenay  v.  Earle,  supra,  said:  "If  the  case  of  Brown  v.  Boorman 
were  an  authority  to  the  full  extent  to  which  it  has  been  pressed  by 
counsel,  no  doubt  the  third  and  fourth  counts  here  might  well  be  join- 
ed with  counts  in  tort.  But,  upon  examination,  that  case  will  be  found 
to  proceed  upon  this  principle:    That  where  there  is  an  employment, 


Ch.  3)  CASE  81 

which  employment  itself  creates  a  duty,  an  action  on  the  case  will 
lie  for  a  breach  of  that  duty,  although  it  may  consist  in  doing  some- 
thing contrary  to  an  agreement  made  in  the  course  of  such  employ- 
ment by  the  party  upon  whom  the  duty  is  cast.  And,  if  that  be  so, 
the  case  is  reconcilable  with  the  other  cases  with  which  it  has  been 
supposed  to  be  in  conflict."  In  Burnett  v.  Lynch,  5  Barn.  &  C.  589, 
cited  by  plaintiffs,  an  action  of  tort  was  sustained  where  it  appeared 
that  defendant  was  the  assignee  of  a  lease  with  covenants  for  certain 
repairs,  which  defendant  neglected  to  make.  Godefroy  v.  Jay,  7  Bing. 
413,  was  tort  against  an  attorney  who  undertook  to  defend  an  ac- 
tion, and  so  negligently  conducted  himself  with  reference  thereto 
that  judgment  was  signed  against  the  defendant.  See,  also,  Zell  v. 
•  Arnold,  2  Pen.  &  W.  (Pa.)  292;  McCall  v.  Forsyth,  4  Watts  &  S. 
(Pa.)  179 ;  McCahan  v.  Hirst,  7  Watts  (Pa.)  175,  cited  in  Reeside's 
Ex's  V.  Reeside,  49  Pa.  322,  88  Am.  Dec.  503. 

These  cases,  and  others  of  like  character  which  are  cited,  are  clear- 
ly distinguishable  from  the  case  .at  bar,  which  is  not  based  upon  neg- 
ligence proper,  as  that  term  is  understood  in  the  foregoing  cases  and 
in  analogous  cases,  nor  upon  any  common-law  duty  arising  out  of  a 
contract,  but  upon  a  simple  neglect  to  pay  over  money  when  due,  as 
that  term  is  ordinarily  used  and  understood  in  declarations  in  actions 
of  debt  or  assumpsit.     *     *     * 

Finally,  we  do  not  think  that  the  mere  fact  that  the  plaintiffs  in 
the  case  at  bar  allege  in  their  declaration  that  the  neglect  complained 
of  was  with  the  intent  to  defraud  changes  such  neglect  into  a  tort. 
Howe  V.  Cooke,  21  Wend.  (N.  Y.)  29.  If  this  were  so,  we  see  no 
reason  why  any  debtor  might  not  be  sued  in  a  tort  action  if  the  plain- 
tiff should  see  fit  to  allege  that  he  had  fraudulently  neglected  to  pay 
his  debt,  and  thus  revive  imprisonment  for  debt. 

Demurrer  sustained,  and  case  remitted  to  the  common  pleas  di- 
vision for  further  proceedings.* 

4  Bretherton  v.  Wood,  3  Brod.  &  Bing.  54  (1821)  semble ;  Corbett  v.  Pack- 
Ington,  G  B.  &  C.  268  (1827) ;  Courtenay  v.  Earle,  20  L.  J.  (N.  S.)  C.  P.  7 
(1850)  semble;  Woods  v.  Finnis,  7  Ex.  363  (1852)  semble.  Accord.  Burnett 
V.  Lynch,  5  B.  &  C.  589  (1826) ;  Phila.  Co.  v.  Constable,  39  Md.  149  (1873) ; 
Ashley  v.  Root,  4  Allen  (Mass.)  504  (1S62).  Contra. 

The  well-known  cases,  permitting  an  action  on  the  case  for  breach  of  a 
non-fraudulent  warranty  made  in  connection  with  a  sale  of  projierty,  are 
also  contra.  Stuart  v.  Wilkins,  1  Doug.  18  (1770)  semble;  Williamson  v. 
Allison,  2  East.  446  (1802);  Osgood  v.  Lewis.  2  Har.  &  G.  (Md )  495  520 
18  Am.  Dec.  317  (1829) ;  Carter  v.  Glass,  44  Mich.  154,  6  N.  W.  200,  38  Am! 
Rep.  240  (1880);  Lassiter  v.  Ward,  33  N.  C.  443  (1850);  Schuchardt  v.  Al- 
len, 1  Wall.  359,  17  L.  Ed.  642  (1863);  Beeman  v.  Buck.  3  Vt.  53, '21  Am  Dec 
571  (18.30) ;    Trice  v.  Cochran,  8  Grat.  (Va.)  442,  450,  56  Am.  Dec.  151  (1852). 

In  Clark  v.  Foster,  8  Vt.  98  (1836),  the  court  refused  to  allow  case  for 
breach  of  warranty  of  authority  by  an  agent  unless  fraud  were  present. 

There  is  authority  for  the  view  that,  if  the  common  law  duty  which  aris- 
es as  incidental  to  a  contract  is  enlarged  by  the  contract,  case  will  not  lie 
for  the  breach  of  such  additional  duties.  Corbett  v.  Packington,  6  B.  &  C. 
Whit.C.L.Pl.— 6 


82  PLEADINGS  IN  TORT  ACTIONS  (Part   1 

CITY  OF  PAWTUCKET  v.  PAWTUCKIET  ELECTRIC  CO. 

(Supreme  Court  of  Rhode  Island,  1905.     27  R.  I.  130,  61  Atl.  48.) 

Trespass  on  the  case  by  the  city  of  Pawtucket  against  the  Pawtucket 
Electric  Company.    On  demurrer  to  defendant's  pleas.    Overruled. 

Blodgett^  J.^  The  plaintiff  declares  in  case  for  the  recovery  of  the 
amount  of  a  judgment  for  the  sum  of  $3,250,  with  interest  and  costs, 
which  it  has  been  obliged  to  pay  to  one  Ryder  because  of  a  defect  in 
a  highway,  which  defect,  it  is  averred,  was  caused  by  the  act  of  the  de- 
fendant in  the  improper  laying  of  certain  underground  pipes  therein, 
under  the  provisions  of  an  ordinance  of  the  city  duly  accepted  in  writ- 
ing by  the  defendant.  The  provisions  of  this  ordinance  the  defendant 
has  duly  given  a  bond  in  the  sum  of  $10,000  to  perform.  The  defend- 
ant has  pleaded  the  ordinance  and  bond  in  abatement,  and  maintains 
that  its  liability,  if  any,  is  to  be  determined  thereby,  and  not  otherwise ; 
and  to  this  plea  the  plaintiff  has  demurred,  contending  that  the  latter 
liability  is  a  cumulative  liability,  merely,  and  does  not  preclude  a  re- 
sort to  a  present  right  of  action  in  case.  By  agreement  of  parties  the 
ordinance  and  the  bond  are  made  a  part  of  the  pleadings  in  the  case. 

It  is  indisputable  that  the  parties  to  a  contract  may  create  a  new  and 
alternative  remedy  for  its  breach  without  interfering  with  the  common- 
law  rights,  duties,  and  remedies  existing  apart  from  the  contract,  and 
when  that  intent  is  manifest  it  may  properly  control.  Indeed,  it  may 
often  be  presumed  that  such  was  the  intent  if  both  rights  and  remedies 
can  coexist  without  inconsistency  or  incongruity. 

In  the  case  at  bar  an  examination  of  the  ordinance  and  bond  in  ques- 
tion shows  that,  the  respective  rights,  duties,  and  liabilities  of  the  par- 
ties are  changed  thereby  in  many  respects.  Among-  these  changes,  it 
may  be  observed  that  the  limit  of  liability  on  the  bond  is  $10,000,  al- 
though the  city  may  be  put  to  an  expense  far  in  excess  of  that  amount. 
The  company  is  to  pay  a  certain  sum  for  the  use  of  the  streets  for  a 
certain  term,  and,  in  consideration  thereof,  contracts  to  save  harmless 
the  city,  as  follows  (section  2,  cl.  "e")  :  "The  said  company,  its  suc- 
cessors and  assigns,  shall  at  all  times  save  and  keep  the  city  of  Paw- 
tucket, its  officers,  servants,  agents,  and  employes,  fully  indemnified 
from  all  loss,  damages,  costs,  and  expenses  that  may  in  any  wise  occur 
from  any  act  or  omission  of  said  company,  its  successors  and  assigns, 
and  its  or  their  officers,  servants,  agents,' and  employes;  and  if  any 
proceeding  whatsoever  be  instituted  against  said  city,  or  its  city  treas- 

268  (1S27) ;  Legge  v.  Tucker,  1  H.  &  N.  500  (1856) ;  Nevin  v.  Pullman  Co., 
106  111.  222,  46  Am.  Rep.  (388  (1883)  semble ;  Speuce  v.  Railroad  Co.,  92  Va. 
102,  IIG,  22  S.  E.  815,  29  L.  R.  A.  578  (1895)  semble.  Accord.  Brown  v.  Boor- 
man,  11  Cl.  &  F.  1  (1844 :  many  of  the  judges  going  expressly  on  this  ground) 
semble ;  So.  Exp.  Co.  v.  McVeigh,  20  Grat.  (Va.)  264,  284  (1871)  semble.  Contra. 
0  Part  of  the  opinion  omitted. 


Ch.  3)  CASE  83 

urer,  because  of  any  such  act  or  omission,  the  said  company,  its  suc- 
cessors and  assigns,  shall  assume  defence  thereof  at  its  or  their  own 
cost."  This  is  a  clear  extension  of  the  ordinary  liability  for  their  own 
negligence  only.  Again,  the  company  binds  itself  to  "keep  all  portions 
of  the  streets  and  sidewalks  so  replaced  by  them,  in  good  condition  for 
twelve  months  from  the  time  of  replacing  the  same,"  even  though  such 
work  of  repairing  be  done  by  the  city.  It  is  evident  that  independent 
of  the  ordinance  there  is  no  liability  upon  the  part  of  the  defendant 
to  keep  the  streets  in  repair  for  12  months,  or  for  any  other  period 
after  approval  and  acceptance  of  such  work  by  the  city,  and  it  is  even 
more  apparent  that  the  defendant  would  not  be  liable  otherwise  for  the 
default  of  the  city  in  making  such  repairs.  Enumeration  might  be 
.made  of  other  differences,  such  as  the  statutory  period  of  limitations  of 
20  years  in  debt,  and  of  6  years  in  case,  and  the  survivorship  of  the 
right  of  action  as  against  an  individual  defendant  similarly  situated ; 
but  these  considerations  are  sufficient  to  compel  the  conclusion  that, 
inasmuch  as  the  parties  have  heretofore  entered  into  a  contractual  re- 
lation to  determine  their  respective  rights  and  liabilities  upon  the 
happening  of  precisely  the  contingency  which  has  now  arisen,  reason 
no  longer  remains  for  the  imposition  of  an  implied  or  noncontractual 
liability,  and  they  must  be  relegated  to  their  own  voluntary  agreement 
relative  thereto,  and  that  the  form  of  agreement  and  the  convention 
of  the  parties  are  to  prevail  over  the  provisions  of  the  law.  "Modus 
et  conventio  vincunt  legem."  Barrett  v.  Duke  of  Bedford,  8  Term 
Rep.  605;  Baber  v.  Harris,  9  Ad.  &  El.  535;  Schlencker  v.  Moxsy, 
5  Dow  &  Ryl.  750 ;  Jones  v.  Hill,  1  Moore,  100. 

An  examination  of  the  decisions  cited  by  the  plaintiff  shows  that 
in  certain  cases,  indeed,  a  plaintiff  may  sue  in  assumpsit  or  may  rely 
upon  the  tort.  But  no  one  of  them  is  a  case  of  this  nature,  and,  on 
the  contrary,  all  the  cases  which  counsel  have  cited  in  which  a  mu- 
nicipality has  sought  to  recover  from  a  contractor  under  similar  cir- 
cumstances present  questions  arising  upon  a  contract  or  upon  an  or- 
dinance or  a  bond,  and  all  of  them  apparently  proceed  upon  the  theory 
that  the  only  liability  is  the  liability  thereby  created.     *     *     * 

While  the  law  is  well  settled  in  this  state,  by  repeated  adjudications, 
that  a  contractor  or  third  person  may  be  thus  answerable  over  to  a 
municipality  in  the  absence  of  a  contractual  relation  between  them — 
Bennett  v.  Fifield,  13  R.  I.  139,  43  Am.  Repf.  17;  Pawtucket  v.  Bray, 
20  R.  I.  17,  37  Atl.  1,  78  Am.  St.  Rep.  837— yet  a  contrary  view  was 
held  in  City  of  Buffalo  v.  Holloway,  7  N.  Y.  493,  57  Am.  Dec.  550 ; 
and  while  we  are  of  opinion  that  the  weight  of  later  authority  estab- 
lishes the  law  elsewhere  as  it  has  been  held  to  be  established  in  this 
state,  it  is  instructive  to  consider  that  liability  in  such  a  case  as  the 
one  at  bar  has  not  been  unanimously  conceded  elsewhere  unless  upon 
a  contract  relative  thereto.  And  see  Spokane  v.  Costello,  33  Wash. 
98,  74  Pac.  58;    City  of  Kansas  v.  O'Connell,  99  Mo.  357,  12  S.  W. 


84  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

791 ;  Becker  v.  Keokuk  Waterworks,  79  Iowa,  419,  44  N.  W.  694, 
18  Am.  St.  Rep.  377;  City  of  New  York  v.  Baird,  176  N.  Y.  269, 
68  N.  E.  364. 

Demurrer  overruled,   and    cause   remanded   to  the  common   pleas 
division  for  further  proceedings.* 


AYER  V.  BARTLETT. 
(Supreme  Court  of  Massachusetts,  1829.    9  Pick.  156.) 

A.,  being  the  owner  of  a  factory  and  the  machinery  in  it,  gave  a 
bond  to  S.,  conditioned  that  he  would  convey  them  to  S.,  when  cer- 
tain negotiable  notes  given  as  the  consideration,  should  be  paid,  and 
that  S.  should  have  the  possession  of  the  property,  so  long  as  he 
continued  to  pay  the  notes  as  they  became  due,  and  no  longer,  and 
possession  was  delivered  immediately,  pursuant  to  the  bond.  Before 
the  first  note  became  due,  the  machinery  was  attached  as  S.'s  prop- 
erty, and  was  removed  from  the  factory  by  the  officer,  who,  before 
the  removal,  had  full  notice  of  A.'s  title,  and  the  machinery  was  after- 
wards sold  on  execution.  A.  then  brought  an  action  against  the 
officer,  in  which  the  declaration  contained  counts  in  trover  and  case. 

Putnam,  J.,''  at  a  subsequent  day  in  this  term,  delivered  the  opin- 
ion of  the  Court.  It  has  been  settled  in  the  former  decision  of  ques- 
tions of  law  raised  in  this  case,  that  the  bond  was  to  be  considered 
as  a  contract  for  a  sale,  and  not  as  an  actual  sale  which  vested  the 
property  in  Scholfield.  It  was  intended  that  the  property  in  the  fac- 
tory, as  well  as  in  the  machinery,  should  continue  in  Ayer  until  Schol- 
field should  have  paid  the  notes,  at  the  times  when  they  should  become 
due,  but  that  Scholfield  should  have  the  actual  use  and  occupation 
of  the  property  so  long  as  he  complied  with  the  conditions,  and  no 
longer.  The  attachment  and  the  sale  by  the  defendant  were  made 
before  the  first  instalment  became  due,  while  Scholfield  had  the  pos- 
session and  the  right  to  the  possession. 

And,  unless  the  contract  were  rescinded,  it  is  our  opinion,  that  the 
plaintiff  could  not  maintain  trover  for  the  injury  of  which  he  com- 
plains. 

Lord  Kenyon  had  indeed  ruled  otherwise  in  Ward  v.  Macauley, 
4  T.  R.  489,  but  that  was  an  action  of  trespass,  in  which  the  point 
now  under  consideration  did  not  arise.  And  his  lordship  and  all  his 
brethren,  in  the  case  of  Gordon  v.  Harper,  7  T.  R.  11,  considered 

8  Case  may  be  brought  for  breach  of  quasi  contract.  Aclamson  v.  Jarvis, 
4  Bing.  66  (1827) ;  Cane  v.  Chapman,  1  Nev.  &  P.  104  (1836) ;  Moore  v.  Ap- 
pleton,  26  Ala.  633  (1855);  Britt  v.  Pitts,  111  Ala.  401,  405,  20  South.  484 
(1895). 

'  Statement  of  facts  taken  from  headnote  and  part  of  opinion  omitted. 


Ch.  3)  CASE  85 

that  the  opinion  upon  this  point  in  Ward  v.  Macauley,  was  extra- 
judicial ;  and  all  concurred  in  the  opinion,  that  the  plaintiff  must  have 
a  right  to  the  possession  as  well  as  the  right  of  property,  to  maintain 
trover. 

The  case  is  there  put,  of  a  right  to  use  a  factory  with  the  ma- 
chinery, as  an  interest  (more  or  less  valuable)  which  might  be  taken 
by  creditors  during  the  term.  Now  Scholfield  had  the  right  to  use 
the  machinery  and  this  factory  from  the  1st  of  November,  when  it 
was  attached,  until  the  first  of  February,  wlien  the  first  note  fell  due ; 
and  if  he  should  have  paid  that  note,  then  he  was  to  have  the  use 
of  the  factory  and  machinery  until  the  next  note  should  become  due ; 
and  so  on,  until  the  whole  amount  should  be  paid. 

The  creditor  of  Scholfield  can  be  in  no  better  situation  than  he 
would  have  been  in  himself.  If  he  had  taken  down  the  machinery, 
and  removed  it  from  the  factory  and  sold  it,  such  conduct  would  have 
been  unlawful,  and  according  to  the  case  of  Farrant  v.  Thompson, 
5  Barn.  &  Aid.  826,  might  have  been  considered  as  a  putting  an  end 
to  the  contract  on  his  part,  and  'a  revesting  of  the  possession  in  the 
owner  by  the  operation  of  law,  so  as  to  enable  him  to  maintain  trover 
against  the  vendee.  And  it  has  been  argued  for  the  plaintiff,  that 
the  same  result  should  follow  a  removal  and  sale  by  the  creditors, 
or  a  sheriff  on  their  behalf;  that  by  such  acts  the  contract  between 
Ayer  and  Scholfield  would  be  terminated,  so  as  to  enable  Ayer  to 
maintain  trover  immediately  against  the  officer.  It  is  to  be  remarked, 
that  the  proceedings  of  the  creditors  and  of  the  officer,  under  the 
processes  of  law  against  Scholfield,  were  in  invitum;  so  that  what 
might  have  been  properly  considered  as  a  termination  of  the  contract, 
if  it  had  been  done  by  Scholfield  himself,  might  not  have  that  effect 
if  done  by  others  against  his  will.  The  case  of  Smith  v.  Putnam,  3 
Pick.  223,  was  determined  upon  that  distinction.  But  the  plaintiff 
has  filed  counts  in  trespass  upon  the  case,  which  are  adapted  to  the 
facts  proved.  He  has  proceeded  at  the  trial  upon  the  ground  that 
the  contract  was  in  force,  and  the  jury  were  instructed  not  to  allow 
any  damage  for  the  detention  of  the  property  from  the  time  of  the 
attachment  to  the  first  of  February,  when  the  first  note  should  have 
been  paid.  It  is  not  necessary  therefore  to  determine,  whether  or 
not  the  contract  was  terminated  by  the  officer,  acting  for  the  cred- 
itors of  Scholfield. 

It  has  been  contended  for  the  defendant,  that  no  action  whatever 
will  lie  for  the  plaintiff  under  the  circumstances  of  this  case.  Now 
it  has  been  already  decided,  that  this  was  a  lawful  contract  which 
the  plaintiff  made  with  Scholfield,  and  the  jury  have  found  that  it 
was  an  honest  transaction.  We  think  that  this  objection  is  unfounded. 
If  trover  could  not,  we  are  satisfied  that  trespass  upon  the  case  could 
be  maintained  for  such  an  injury  to  the  reversionary  interest  in  per- 
sonal property.  In  1  Chit.  PI.  197,  it  is  said,  that  case  is  the  proper 
remedy;    and  counts  in  trespass  upon  the  case  may  be    joined  wit'' 


86  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

a  count  in  trover.     1  Chit.  PL  195,   (7th  Am.  Ed.  230,)   of  Joinder 
of  Actions.     *     *     * 

The  motion  for  a  new  trial  must  be  overruled,  and  judgment  ren- 
dered according  to  the  verdict.* 


MOUNT  V.  HUNTER. 

(Supreme  Court  of  Illinois,   1871.    58  111.  246.) 

Mr.  Justice  Walker  *  delivered  the  opinion  of  the  court : 

This  was  an  action  on  the  case,  brought  by  appellee,  in  the  Logan 
circuit  court,  against  appellant.  The  ground  of  recovery  was  the 
turning  of  appellant's  sheep,  affected  with  a  contagious  disease,  upon 
the  open  prairie  with  appellee's  sheep,  whereby  they  became  diseased. 
The  action  was  brought  under  the  2nJ  section  of  the  act  of  February 
16,  1865.  (Sess.  Laws,  p.  126.)  It  declares,  "If  any  person  shall 
suffer  to  run  at  large,  or  keep  in  any  place  where  other  creatures 
can  have  access  to,  and  become  infected,  any  sheep  known  to  the 
owner  or  person  having  the  care  or  possession  thereof,  to  be  affected 
with  any  contagious  disease,  such  person  shall  be  liable  to  pay  all 
damage  that  may  result  from  the  running  at  large  of  such  diseased 
sheep." 

On  a  trial  in  the  court  below,  the  jury  found  the  issues  for  the 
plaintiff,  and  assessed  his  damages.  Motions  for  a  new  trial  and  in 
arrest  of  judgment,  were  entered,  but  were  overruled  by  the  court, 
Hud  a  judgment  was  rendered  on  the  verdict. 

It  is  first  urged,  that  the  declaration  is  so  defective  the  judgment 
should  have  been  arrested.     The  grounds  urged,  are,  that  the  suit  is 

8  Dean  v.  Wliitaker,  1  C.  &  P.  347  (1824)  semble;  Brown  v.  Boorman,  11 
CI.  &  F.  1  (1844) ;  Arthur  v.  Gayle,  38  Ala.  2.59,  266  (1SG2) ;  Ehrman  v.  Oats, 
101  Ala.  604,  14  South.  361  (1893)  semble;  Coffey  v.  Wilkinson,  1  Mete.  (Ky.) 
101  (1858)  semble;  Hall  v.  Snowhill,  14  N.  J.  Law,  8  (1833);  Cole  v.  Rob- 
inson. 23  N.  C.  541,  544  (1841)  semble ;  Shreeve  v.  Adams  &  Co.,  6  Phila.  (Pa.) 
260  (1SG7). 

A  pledge  of  goods  has  been  held  a  sufficient  injury  to  the  reversion.  Smith 
V.  White,  6  Bing.  218  (1840).  Other  acts  amounting  to  a  conversion,  but  in 
fact  not  injuring  the  goods,  have  been  held  sufficient  to  maintain  case  upon. 
Coe  v.  English,  6  Houst.  (Del.)  456  (1881);  Googins  v.  Gilmore,  47  Me.  9,  74 
Am.  Dec.  ^472  (1859).  Accord.  Scarbrough  v.  Rowan,  125  Ala.  509,  511,  27 
South.  919  (1899)  semble.  Contra. 

The  same  principle  has  been  applied  in  the  case  of  corporeal  heredita- 
ments. Ripka  V.  Sergeant,  7  Watts  &  S.  (Pa.)  9,  13,  42  Am.  Dec.  214  (1S44) ; 
Schnable  v.  Koehler,  28  Pa.  181  (1857).  Accord.  Baxter  v.  Taylor,  4  B.  & 
Ad.  72  (1832).  Contra. 

An  injury  to  the  reversion  is  essential.  Injury  to  land :  Baxter  v.  Tay- 
lor, 4  B.  &  Ad.  72  (1832)  ;  Simpson  v.  Savage,  1  C.  B.  N.  S.  347  (1856) ;  City 
V.  McDonough,  112  111.  85,  1  N.  E.  337  (1SS4)  semble;  Hastings  v.  Livermore, 
7  Grav  (Mass.)  194  (1856).  Injury  to  easements:  Tinsman  v.  Railway,  25 
N.  J.  Law,  255,  266,  64  Am.  Dec.  415  (1855)  semble;  Gillison  v.  City,  16  W. 
Va.  282,  305,  37  Am.  Rep.  763  (1880).  Injury  to  chattels:  Tancred  v.  Ail- 
good,  4  H.  &  N.  444  (1859).  Accord. 

9  Statement  of  facts  and  part  of  opinion  omitted. 


I 


Ch.  3)  CASH  87 

for  a  penalty,  and  debt,  and  not  case,  is  the  proper  form  of  action, 
and  that  the  declaration  does  not  conclude  against  the  form  of  the 
statute. 

One  of  the  divisions  of  statutes  is  remedial  and  penal.  A  remedial 
statute  has  for  its  object  either  to  redress  some  existing  grievance, 
or  to  introduce  some  regulation  or  proceeding  conducive  to  the  pubhc 
good.  The  remedy  for  the  breach  of  a  remedial  statute,  is  by  an 
action  for  damages  sustained  from  such  a  breach,  at  the  suit  of  the 
party  injured.  A  penal  statute  imposes  a  penalty  upon  the  commis- 
sion of  the  prohibited  offense,  which  is  recovered  by  an  action  of 
debt,  in  the  name  of  the  informer,  for  his  own  use,  or  qui  tam.  The 
statute  fixes  the  amount  of  the  penalty,  and  hence  the  action  of  debt 
is  appropriate,  while  in  actions  under  remedial  statutes,  the  party  in- 
jured recovers  the  amount  of  injury  he  has  sustained  by  a  breach  of 
the  statute,  and  case  is  generally  the  appropriate  remedy.  These  dis- 
tinctions are  elementary,  and  require  the  citation  of  no  authorities 
for  their  illustration.     *     *     * 

Judgment  affirmed.^* 


10 


10  Bristow  V.  "Wright,  2  Doug.  00.5  (1781:  was  used)  not  even  semble;  Ross 
V.  Horsey,  3  Har.  (Del.)  GO  (1840);  Cockrill  v.  Butler  (C.  C.)  78  Fed.  679, 
682  (1897) ;    Heridia  v.  Ayres,  12  Pick.  (Mass.)  334,  343  (1832).  Accord. 

The  rule  is  the  same  where  p.  like  cause  of  action  arises  under  a  Con- 
stitution. County  V.  Brower,  117  Pa.  647,  656,  12  Atl.  577,  2  Am.  St.  Rep. 
713  (1888) ;  Delaware  County's  Appeal,  119  Pa.  159,  171,  13  Atl.  62  (1888) 
semble. 

In  Bullard  v.  Bell,  Fed.  Cas.  No.  2,121  (1817:  Cir.  Ct.  for  D.  N.  H.)  the 
court  said : 

"Lord  Holt  is  reported  to  have  said,  that  the  case  of  debt  upon  this  stat- 
ute was  at  first  a  strain,  because  it  gave  an  action  of  debt,  whereas  the 
statute  gave  treble  damages;  but  the  party  should  rather  have  had  an  ac- 
tion on  the  statute.  College  of  Physicians  v.  Salmon,  1  Ld.  Raym.  (>S0.  His 
lordship,  however,  was  clearly  mistaken ;  for  the  words  of  the  statute  give 
the  treble  value,  and  not  treble  damages ;  and  debt  lies  in  every  case  of  a 
penalty,  where  the  sum  is  certain,  or  can  be  readily  reduced  to  a  certainty, 
as  the^  treble  value  may.  But  the  very  distinction  alluded  to  by  his  lord- 
ship clearly  shows  that  though  debt  is  in  general  the  remedy  for  penalties 
and  forfeitures  on  statutes,  yet  that  is  not  universally  so.  For  the  rem- 
edy follows  the  nature  of  the  case,  and  debt  lies  only  when,  by  analogy  to 
the  rules  of  the  common  law,  the  duty  or  penalty  lies  not  in  unliquidated 
damages,  but  is  capable  of  being  reduced  to  a  certainty.  So,  if  the  for- 
feiture be  of  a  chattel,  detinue,  and  not  debt,  is  the  proper  remedy.  And 
cases  may  arise  under  a  statute,  in  which  the  parties  may  have  divers  rem- 
edies. For  instance,  by  the  statutes  of  New  Hampshire  and  Massachusetts, 
towns  are  obliged  to  support  paupers  having  settlements  therein  ;  and  ai-e 
compellable,  in  certain  cases,  to  pay  the  expenses  incurred  by  other  towns 
on  account  of  such  paupers.  Actions  of  assumpsit  upon  these  statutes  are 
very  frequent;  and  (assuming  that  corporations  have  a  capacity  to  make  a 
promise)  there  cannot  be  a  doubt,  that  the  action  well  lies;  for  the  stat- 
utes create  a  direct  and  immediate  liability  quasi  ex  contractu.  But  there 
can  be  as  little  doubt,  that  an  action  of  debt  will  lie  in  the  same  case,  as 
the  claim  is  for  a  determinate  sum  of  money,  arising  from  a  legal  and  di- 
rect duty,  if  the  statute  do  not  point  to  any  other  form  of  action.  The  re- 
sult of  this  examination  instructs  us,  that  the  action  to  be  pursued  to  en- 
force a  statutable  right,  obligation,  or  remedy  for  a  grievance,  is  not  neces- 
sarily debt,  but  depends  upon  the  subject-matter  and  nature  of  the  provi- 
sions of  the  statute ;    and  that  it  is  not  sufficient,  in  the  present  case,  for 


88  PLEADINGS  IN   TOET  ACTIONS  (Part    1 


SECTION  2.— NECESSARY  ALLEGATIONS 


DECLARATION  IN  CASE  FOR  INJURY  TO  LAND. 

(2  Chitty,  Pleading  [ISth  Am.  Ed.]  pp.  *596,   *776.) 

In  the  Common  Pleas. 

next  after  in  Term,  Will.  4. 


(to  wit.)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 

trespass  on  the  case,  and  thereupon  the  said  A.  B.  by  E.  F.  his  attor- 
ney, complains,  for  that  whereas  the  said  plaintiff,  before  and  at  the 
time  of  the  committing  of  the  grievances  hereinafter  mentioned,  was, 
and  from  thence  hitherto  hath  been,  and  still  is,  lawfully  possessed 
of  a  certain  messuage  and  premises,  with  the  appurtenances,  situate 
in, the  county  aforesaid,  and  in  which  said  messuage  and  premises, 
the  said  plaintiff  and  his  family  have,  for  and  during  all  the  time 
aforesaid,  resided  and  dwelt,  and  still  do  reside  and  dwell,  to  wit, 
at,  &c.  (venue)  ;  nevertheless  the  said  defendant,  contriving  and 
wrongfully  and  unjustly  intending  to  injure,  prejudice,  and  aggrieve 
the  said  plaintiff  in  the  possession,  use,  occupation,  and  enjoyment  of 
his  said  messuage  and  premises,  and  to  render  the  same  incommodious, 
unfit  for  habitation,  and  of  little  or  no  use  or  value  to  the  said 
plaintiff,  whilst  the  said  plaintiff  was  so  possessed  thereof,  and  so 
resided  and  dwelt  with  his  family  as  aforesaid,  to  wit,  on  the  day  and 
year  aforesaid,  at,  &c.  (venue)  aforesaid,  wrongfully  and  unjustly 
erected  and  built,  and  caused  and  procured  to  be  erected  and  built, 
a  certain  building  near  to  the  said  messuage  and  premises  of  the  said 
plaintiff,  in  so  careless,  negligent  and  improper  a  manner,  that  by 
reason  thereof,  afterwards,  to  wit,  on  the  day  and  year  aforesaid, 
and  on  divers  other  times  afterwards,  and  before  the  commencement 
of  this  suit,  divers  large  quantities  of  rain-water  ran  and  flowed  from 
the  said  building  down  to,  upon,  against,  and  into,  the  said  messuage 
and  premises  of  the  said  plaintiff,  and  the  walls,  roofs,  ceilings,  beams, 
wainscottings,  papering,  floor,  stairs,  doors  and  other  parts  thereof, 
and  therein  being,  and  thereby  greatly  weakened,  injured,  wetted, 
and  damaged  the  said  messuage  and  premises  of  the  said  plaintiff, 
and  the  said  walls,  roofs,  ceilings,  wainscottings,  paperings,  floors, 
stairs,  doors,  and  other  parts  thereof,  and  by  reason  of  the  premises, 
the  said  messuage  and  premises  of  the  said  plaintiff  became,  and  were 
and  are  damp,  incommodious,  and  less  fit  for  habitation;  and  also, 
by  reason  of  the  premises,  one  G.  H.  who  before  the  time  of  commit- 
ting of  the  said  grievances  had  resided  and  lodged  in  the  said  mes- 
suage and  premises  of  the  said  plaintiff  as  a  lodger,  at  a  certain  rent 

the  defendant  to  establish  affirmatively,  that  an  action  of  assumpsit  or  case 
might  well  lie;    but  negatively,  that  an  action  of  debt  will  not" 


Ch.  3)  CASE  89 

and  profit  payable  by  the  said  G.  H.  to  the  said  plaintiff  in  that  behaK 
from  the  time  of  the  committing  of  the  said  grievances,  hath  hitherto 
ceased  to  reside  or  lodge  in  such  messuage  and  premises  as  a  lodger 
or  otherwise,  and  hereby  the  said  plaintiff  hath  lost  divers  great  gains 
and  profits,  which  she  would  have  otherwise  enjoyed  and  received, 
to  wit,  at,  &c.  (venue)  aforesaid.  Wherefore  the  said  plaintiff  saith 
that  he  is  injured,  and  hath  sustained  damage  to  the  amount  of 
i .,  and  therefore  he  brings  his  suit,  &c. 


GEORGE  v.  FISK  &  NORCROSS. 

(Supreme  Court  of  New  Hampshire,  1855.     32  N.  H.  32.) 

Case,  brought  to  recover  damages  of  the  defendants  as  partners, 
under  the  firm  of  Fisk  &  Norcross,  for  causing  the  obstruction  of  the 
Pemigewasset  river,  by  means  of  logs  placed  therein,  whereby  the 
plaintiff's  land  was  flowed  and  injured. 

The  declaration  contained  four  counts,  the  first  of  which  was  as 
follows : 

"In  a  plea  of  the  case  for  that  the  plaintiff,  on  the  first  day  of 
February,  A.  D.  1850,  at  Woodstock  aforesaid,  was,  and  ever  since 
has  been,  seized  of  a  tract  of  land  in  said  Woodstock,  and  bounded 
on  the  north  by  land  of  Charles  Fifield,  east  by  land  of  David  Wood- 
bury, south  by  land  of  David  Woodbury,  Jr.,  and  west  by  Pemigewas- 
set river,  containing  fifty  acres,  more  or  less.     And  the  defendants, 
not  ignorant  thereof,  then  and  there  did  wrongfully  cause  to  be  placed 
in  said  river,  above  said  tract  of  land,  large  quantities  of  logs,  timber 
and  trees,  to  wit,  ten  thousand  logs,  trees  and  lumber,  containing  one  C^^-^-^fiAj^ 
million  feet,  and  did  wrongful^y-^rrdTrc^glTg^Titty'^fmirihe  same  to 
accumulate,  obstruct  and  dam  up  the  said  river  below  and  near  the 
plaintiff's  said  land,  and  opposite  to  the  same,  and  did  neglect  prop- 
erly to  direct,  drive  and  float  said  logs,  trees  and  lumber,  so  as  to     ^ 
keep  them  clear  of  said  land,  whefeby  said  riverbecame^^and  was,^_^^j"?^ 
in  consequence  of  defendant's  negl%eiTceT'^reatly~dammed~upT~'3rfa'''"^'i'^*^ 
the  plaintiff's  said  land  was  overflowed  and  drowned  thereby,._and       p 
said  logs  were  thus  negligently  and  wrongfully  permitted  by  defend-  ^^'^^^^feOkj^ 
ants  to  float  upon  said  land,  and  the  same  then  and  there,  by  the  force 
and  pressure  of  said  stream,  and  by  the  logs,  trees  and  timber  afore- 
said, did  wash  away,  gully  out  and  subvert  the  soil,  and  injure  and 
destroy  the  plaintiff's  grass,  then  and  there  growing,  and  did  other- 
wise greatly  damage  said  land,  and  lessen  it  in  value." 

The  other  counts  were  substantially  the  same  as  the  first,  alleging 
the  injuries  to  have  been  caused  in  February,  1851,  1852  and  1853. 

Eastman,  J.^^  *  *  *  f^e  next  question  is,  whether  the  action 
can  be  maintained  upon  the  plaintiff's  declaration.     This  question,  as 

11  Statement  of  facts  abridged  and  part  of  opinion  omitted. 


90  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

well  as  the  others  presented  in  the  case,  is  not  so  clear  as  the  first, 
but  upon  the  whole  we  think  the  verdict  may  be  sustained. 

The  plaintiff  was  in  possession  of  the  land  under  a  bond  for  a  deed 
from  the  town  of  Woodstock.  By  this  bond  the  town,  who  owned 
the  land,  agreed  that  they  would  convey  the  premises  to  the  plaintiff, 
on  condition  that  he  should  support  his  father,  mother,  and  grand- 
mother during  their  natural  lives ;  and  they  further  agreed  that  he 
should  have  the  use  and  profit  of  the  farm  so  long  as  he  should  ren- 
der the  support  to  the  individuals  named ;  and  that  he  should  have 
the  privilege  of  managing  and  cultivating  it  without  waste  or  detri- 
ment, &c.  So  long,  then,  as  the  plaintiff  performed  the  conditions 
of  the  bond,  he  was  entitled  to  the  possession,  free  use,  profit  and 
income  of  the  farm,  and  was  also  acquiring  an  interest  in  the  land 
itself  beyond  that  of  a  mere  tenant,  which  would  eventually,  provided 
he  continued  to  fulfill  the  conditions  of  the  bond,  give  him  a  title  to 
the  place.  See  Pritchard  v.  Brown,  4-  N.  H.  397,  17  Am.  Dec.  431 ; 
Edgerly  v.  Sanborn,  6  N.,H.  397.  In  the  latter  case  it  was  held  that 
he  who  is  in  possession  of  land  under  a  bond  for  a  deed,  and  has  paid 
part  of  the  consideration,  has  such  an  interest  in  the  land  as  may  be 
taken  by  extent. 

The  plaintiff,  at  the  time  the  damage  complained  of  was  done,  had 
performed  a  part  of  the  consideration  of  the  bond,  and  up  to  the  time 
of  the  trial  of  the  cause  had  supported  the  individuals  according  to 
the  condition  of  the  same.  His  father,  however,  had  in  the  meantime 
deceased ;  an  event  which  made  the  conditions  less  onerous,  and 
which  would  add  to  the  inducement  to  complete  all  the  requirements 
of  the  bond. 

The  defendants  contended  that  upon  this  proof  of  title  the  action 
could  not  be  maintained  upon  the  present  declaration. 

The  plaintiff'  alleges  that  he  was  seised  of  the  premises,  and  that 
the  defendants,  not  ignorant  of  the  fact,  committed  the  grievances 
complained  of,  whereby  the  soil  was  subverted,  the  grass  then  and 
there  growing  destroyed,  and  the  land  otherwise  greatly  injured  and 
lessened  in  value.  No  specific  title  to  the  land  is  alleged,  nor  was  it 
necessary  that  there  should  be,  as  mere  possession  is  sufficient  to  main- 
tain an  action  against  a  wrong  doer.  But  the  plaintiff  can  recover 
for  nothing  beyond  what  his  right  and  interest  shown  will  entitle 
him  to. 

It  is  well  settled  that  both  _thej:enant  and  landlord-Jnaj^rnaintajji 
^tionsTor  injuries  done  to  the  soil,  or  buildings  upon  it.  They  are 
■^oth  injured,  MT  irT'differeirT'degreesl"  flie" tenant  in  thTTnterruption 
to  his  estate  and  the  diminution  of  his  profits,  and  the  landlord  in 
the  more  permanent  injury  to  his  property.  Both  may  have  separate 
actions  for  their  several  damages,  and  a  recovery  is  to  be  had  accord- 
\ng  to  their  respective  interests.  Rolles'  Abr.  Trespass,  N.  3,  4,  5,  67 ; 
1  Saund.  322,  note  3;   Vin.  Abr.  Trespass,  3,  4;   Co.  Litt.  57,  a,  note 


Ch.  3)  CASH  91 

2;  2  Chitty's  PI.  386;  2  Greenl.  Ev.  §  469;  Starr  et  al.  v.  Jackson, 
11  Mass.  519;  Baker  v.  Sanderson,  3  Pick.  (Mass.)  348;  Davis  v. 
Jewett,  13  N.  H.  88 ;    Plumer  v.  Harper,  3  N.  H.  88,  14  Am.  Dec.  333. 

It  is  immaterial  whether  the  tenancy  be  one  at  will  or  for  years ; 
the  action  may  be  maintained  and  a  recovery  had  according  to  the 
damage. 

If  the  action  is  brought  by  the  landlord  or  reversioner,  who  is  out 
of  possession,  his  specific  interest  in  the  property  affected  should  be 
described.  Not  being  in  possession,  his  damages  cannot  be  known, 
except  by  a  correct  description  of  his  title  and  the  injury  received, 
and  his  interest  in  the  property  should  be  stated  according  to  the  facts. 
Davis  V.  Jewett,  13  N.  H.  88,  14  Am.  Dec.  333 ;  Baker  v.  Sanderson, 
3  Pick.  (Mass.)  348;    1  Chitty's  PI.  142;   2  Chitty's  PI.  378.^2 

But  where  the  plaintiff  is  in  possession,  in  describing  his  right  or 
interest  in  the  property  against  a  wrong  doer  for  the  recovery  of  dam- 
ages and  not  the  land  itself,  it  is  sufficient  to  state  in  the  declaration 
that  the  plaintiff  at  the  time  of  the  injury  was  possessed  of  the  land. 
His  rights  and  interest  are  matters  of  evidence  only.^^  1  Saund.  on 
PI.  &  Ev.  339;  2  Saund.  113,  a,  note  1;  Id.  172,  note  1;  Rider  v. 
Smith,  3  Term,  766. 

This  plaintiff  showed  himself  in  possession  of  the  premises  de- 
scribed in  the  declaration,  and  that  his  possession  was  not  dependent 
upon  the  will  of  the  owners  of  the  soil.  As  long  as  he  kept  the  condi- 
tion of  the  bond,  so  long  was  he  entitled  to  the  possession  of  the  land, 
and  no  one  could  rightfully  deprive  him  of  the  possession.  He  was, 
therefore,  more  than  a  mere  tenant  at  will  or  lessee  for  years.  He 
had  in  fact  a  freehold  interest  in  the  property;  and  although  the  fee 
in  the  land  was  not  in  him  but  in  the  town,  yet  his  interest  was  of 
the  character  that  might  eventually  ripen  into  a  perfect  title  to  the 
premises. 

But  the  declaration  alleges  only  that  the  plaintiff  was  "seized"  of 
the  land.  It  does  not  in  terms  allege  possession.  Were  seizin  pos- 
session merely,  as  is  said  in  Frost  v.  Cloutman,  7  N.  H.  9,  15,  26 
Am.  Dec.  723,  the  plaintiff  would  need  to  show  only  possession  as 
against  a  wrong  doer;  but  it  is  believed  that  technically  and  more 
strictly  speaking,  a  seizin  of  land  is  something  more  than  a  bare 
naked  possession ;  that  it  is  the  possession  of  at  least  a  freehold.  In 
either  view,  however,  the  declaration  would  be  sufficient.  The  plain- 
tiff had  a  possession,  which  was  coupled  with  an  interest  in  the  prem- 


12  1  Chitty,  Pleading  [16th  Am.  Ed.]  *395  (no  citations);  21  PL  &  Pr.  912 
(citations  given  by  court  so  far  as  in  point).  Accord. 

Probably  the  rule  is  the  same  as  to  chattels.  1  Chitty,  Pleading  [16th  Am. 
Ed.]  *394  (no  citations). 

13  North  V.  Gates,  2  Bibb  (Ky.)  591  (1812).  Accord.  In  Terry  v.  Strad- 
wicke,  2  Lev.  156  (1675),  it  was  held  that  an  allegation  that  "goods  are  on 
land  of  the  plaintiff"  was  bad. 


92  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

ises,  that  was  not  limited  to  any  specific  term,  and  a  term  not  limited 
is  a  freehold. 

The  declaration  then  was  sufficient  to  maintain  the  action,  and  the 
evidence  was  competent  to  sustain  the  declaration.     *     *     * 

Judgment  on  the  verdict. 


JACKSON  V.  PESKED. 

(Court   of  King's  Bench,   1813.     1   Maule   &   S.   234.) 

Action  upon  the  case.  The  declaration  stated,  that  before  and  at 
the  time  of  committing  the  grievances  hereinafter  mentioned,  a  cer- 
tain yard  and  part  of  a  certain  wall,  situate,  &c.  was  in  the  possession 
and  occupation  of  one  William  Frisk,  as  tenant  to  the  plaintiff,  the 
reversion  thereof  then  and  still  being  in  the  plaintiff,  to  wit,  at,  &c. ; 
yet  the  defendant  well  knowing  the  premises,  but  intending  to  injure 
and  aggrieve  the  plaintiff  in  his  reversionary  estate  and  interest  of 
and  in  the  said  yard  and  the  said  part  of  the  said  wall,  heretofore 
and  whilst  the  said  yard  and  the  said  part  of  the  said  wall  were  so 
in  the  possession  and  occupation  of  Frisk  as  tenant  of  the  plaintiff, 
and  whilst  the  plaintiff  was  so  interested  therein  as  aforesaid,  to  wit, 
on,  &c.  and  on  divers  other  days  and  times  between  that  day  and  the 
day  of  exhibiting  this  bill,  at,  &c.  wrongfully,  injuriously,  and  without 
leave  and  against  the  will  of  the  plaintiff,  erected,  put,  and  placed 
upon  the  said  part  of  the  said  wall  divers  large  quantities  of  brick 
and  mortar  and  other  materials,  and  thereby  raised  the  said  part  of 
the  wall  to  a  great  height,  to  wit,  the  height  of  three  feet  more  than 
the  same  had  been  before  that  time,  and  also  put  and  placed  divers 
pieces  of  wood  and  timber,  and  tiles  upon  the  said  wall  overhanging 
the  said  yard,  to  wit,  at,  &c. ;  by  reason  whereof,  &c.  After  verdict 
for  the  plaintiff  on  the  general  issue,  with  Is.  damages,  a  motion  was 
made  in  arrest  of  judgment:  against  which  Jervis  and  Comyn  shewed 
cause,  and  Lawes  was  heard  in  support  of  it,  on  a  former  day  in  this 
term. 

Lord  Eli^Enbgrough,  C.  J.,^*  on  this  day  delivered  the  judgment 
of  the  Court.  This  was  an  action  by  a  reversioner  for  an  injury  done 
to  a  yard  and  part  of  a  wall  of  which  the  reversion  belonged  to  him, 
and  the  plaintiff  obtained  a  verdict;  but  it  not  being  alleged  in  the 
declaration  that  the  acts  done  were  to  the  damage  of  the  plaintiff,  as 
such  reversioner,  or  that  his  reversionary  estate  and  interest  was 
thereby  depreciated  or  lessened  in  value,  the  defendant  obtained  a 
rule  nisi  to  arrest  the  judgment.  The  declaration  contained  only  one 
count,  and  that  count  stated  several  facts  which  are  ordinarily  stated 
in  declarations  of  trespass,  as  mere  injuries  to  the  possession,  viz., 
putting  and  placing  upon  part  of  a  wall  of  the  plaintiff  quantities  of 

1*  Part  of  the  opinion  omitted. 


Ch  3)  CASE  93 

brick  and  mortar,  and  thereby  raising  the  same  to  a  great  height, 
and  putting  and  placing  pieces  of  timber,  wood,  and  tiles  upon  the 
wall  overhanging  the  said  yard.  The  plaintiff  also  added,  as  conse- 
quential damage,  "by  reason  whereof  not  only  the  said  plaintiff  during 
all  the  time  aforesaid  lost  the  use  and  advantage  of  his  said  part  of 
the  wall,"  (that  is,  sustained  a  temporary  loss  affecting  the  occupation 
and  enjoyment  thereof  merely,  which  he  had  not,  not  being  in  pos- 
session,) "but  also  by  means  of  the  said  wood,  timber,  and  tiles  so 
overhanging  the  said  wall,  large  quantities  of  rain  and  moisture  have 
from  time  to  time  during  all  the  said  time  run  and  flowed  from  the 
top  of  the  said  wall  upon  the  yard  of  the  plaintiff,  and  the  said  yard 
and  the  said  part  of  the  wall  have  been  greatly  injured  and  damnified," 
And  the  question  seems  to  be  whether,  in  the  absence  of  any  such 
allegation  as  is  usually,  and  (I  believe)  invariably  made  in  declara- 
tions of  this  sort,  that  thereby  the  plaintiff's  reversionary  estate  and 
interest  in  the  premises  were  damaged  or  prejudiced,  or  lessened  in 
value,  we  must  infer  that  the  water  drip  so  described  had  a  per- 
manently injurious  effect  of  this  nature.  It  is  not  stated  that  the 
foundation  of  the  wall  was  injured  or  undermined,  or  that  the  yard 
was  more  injured  thereby  as  being  wetted.  The  count  does  not  import 
in  terms  that  any  act  charged  upon  the  defendant  was  injurious  or 
to  the  damage  of  the  plaintiff:  the  declaration  does  indeed  contain 
the  usual  conclusion,  "Wherefore  the  plaintiff  saith  he  is  injured  and 
hath  sustained  damage,  &c. :"  but  this  is  not  matter  of  charge  in  the 
declaration,  it  is  only  the  resulting  inference  of  damage  drawn  by 
the  plaintiff  from  the  matter,  of  charge ;  and  unless  the  count,  which 
is  the  matter  of  charge,  warrants  such  inference  it  has  no  effect; 
and  in  truth,  although  this  part  of  the  declaration  was  brought  under 
our  notice,  but  little  stress  was  laid  upon  it  as  a  special  allegation 
of  damage  in  the  argument.  The  main  point  relied  upon  was  this, 
that  after  verdict  the  Court  would  infer  that  the  plaintiff  was  confined 
at  the  trial  to  the  proof  of  such  an  injury  as  would  be  prejudicial 
to  the  reversion,  and  that  all  evidence  short  of  this  effect  must  be 
supposed  to  have  been  excluded;  and  it  was  with  a  view  to  look 
into  this  point  that  the  Court  forebore  giving  its  judgment  at  the 
time.  Where  a  matter  is  so  essentially  necessary  to  be  proved,  that 
had  it  not  been  given  in  evidence,  the  jury  could  not  have  given  such 
a  verdict,  there  the  want  of  stating  that  matter  in  express  terms  in 
a  declaration,  provided  it  contains  terms  sufficiently  general  to  com- 
prehend it  in  fair  and  reasonable  intendment,  will  be  cured  by  a 
verdict;  and  where  a  general  allegation  must  in  fair  construction  so 
far  require  to  be  restricted,  that  no  judge  and  no  jury-  could  have 
properly  treated  it  in  an  unrestrained  sense,  it  may  reasonably  be 
presumed  after  verdict,  that  it  was  so  restrained  at  the  trial;  but 
unless  the  allegation  is  of  such  a  nature  that  it  would  have  been  doing 
violence  to  the  terms  as  applied  to  the  subject  matter,  to  have  treated 
It   as   unrestrained,   we   are   not  aware   of   any   authority   which  will 


94  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

warrant  us  in  presuming  that  it  was  considered  as  restrained  merely 
because  in  the  extreme  latitude  of  the  terms  such  a  sense  might  be 
affixed  to  them.     The  rule  by  which  we  must  go,  must  be  one  ap- 
plicable to  all  actions,  in  inferior  as  well  as  superior  courts ;   to  cases 
in  which  the  judge  has  no  power  to  grant  a  new  trial  as  well  as  to 
those  in  which  there  is  such  power;    and  to  cases  in  which,  if  the 
jury  do  not  think  fit  to  follow  the  judge's  direction,  there  is  no  power 
to  correct  their  decision:    and  we  must  take  care  therefore  not  to 
extend  the  rule  (if  it  has  not  been  already  extended  further)  beyond 
those  cases  in  which  we  must  presume  the  judge  to  have  given  a 
right  direction,  and  the  jury  to  have  followed  it.     *     *     *     As  there- 
fore  there  is  noauthority,  upon  which  we  can  say  we  are  warranted, 
""tn^^reiurning  IHat  the  jury  were  confined  to  such  injuries  as  would 
^"liecessarily  prejudice  the  reversion;    as  the  charge  in  the  declaration 
"'is  conceived  m  siich  terms  as  Jo  include  Injuries  which_ar£--not  nec:^. 
essarily   prejudicial  to  it,  but  more  aptly   and   naturally  applied   to^ 
'  injuries  to'the  possession  onlyj    and  as  the  plaintifi_h_as_nQt_charged_^ 
that  tlie  reversion  was  prejudiced,  or  that  the  plaintiff  was  damnified _ 
'JirTe^SecftHereof,  we  are  not  warranted  in   inferring  that   such   a^ 
prejudice  out  of  the  natural  and  ordinary  scope  of  the  allegation  must— — 
^ave  been  proved : ,  and  therefore  the  rule  for  arresting  the  jud^[mgnt__ 
must  be  made  absolute.^* 


DECLARATION  IN  CASE  FOR  INJURY  TO  AN  EASEMENT. 

(2  Chitty,  Pleading  [13th  Am.  Ed.]  pp.  *596,  *807,  *80S.) 

In  the  Common  Pleas. 

next  after —  in Term,  — '■ Will.  4. 

(to  wit)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 


trespass  on  the  case,  and  thereupon  the  said  A.  B.  by  E.  F.  his  attor- 
ney, complains,  for  that  whereas  the  said  plaintiff,  l3efore  and  at  the 
time  of  the  committing  of  the  grievances  by  the  said  defendant  as 
hereinafter  next  mentioned,  was,  and  from  hence  hitherto  hath  been,, 
and  still  is,  lawfully  possessed  of  a  certain  messuage  (and  garden 
thereto  belonging)   with  the  appurtenances,  situate  and  being  in  the 

parish  of  in  the  county  of  .     And  by  reason  thereof,^ 

the  said  plaintiff,  during  all  the  time  aforesaid,  ought  to  have  had,^ 
and  still  of  right  ought  to  have,  a  certain  way  from  and  out  of  the 
said  (garden)  unto,  into,  through,  and  over  a  certain  (close),  in  the 
parish  aforesaid,  and  from  and  out  of  the  same,  unto  and  into    (a 

15  Injury  to  land :  City  v,  McDonough,  112  111.  85,  1  N.  E.  337  (1884)  semble; 
Baker  v.  Sanderson,  3  Pick.  (Mass.)  348  (1825)  semble ;  Davis  v.  Jewett,  13 
N.  H.  88.  91  (1842) ;  Potts  v.  Clarke,  20  N.  J.  Law,  536  (1845).  Injury  to  ease- 
ments :  Dobsou  V.  Blackmore,  9  A.  &  E.  991  (1847) ;  Tinsman  v.  Railway,  25 
N.  J.  Law,  255,  64  Am.  Dec.  415  (185.5);  Patrick  v,  Ruffners,  2  Rob.  (Va.> 
220,  227,  40  Am.  Dec.  740  (1843)  semble.  Accord. 


Ch.  3)  CASE  95 

certain  wharf,  or  quay,  of  the  said  plaintiff  in  the  parish  aforesaid.) 
and  so  back  again  from  the  said  (wharf,  or  quay,)  unto  and  into, 
through,  over,  and  along  the  said  (close,)  and  from  and  out  of  the 
same  into  and  unto  the  said  (garden)  of  the  said  plaintiff  for  himself 
and  his  servants,  on  foot,  to  go,  return,  pass,  and  repass,  every  year 
and  at  all  times  of  the  year,  at  his  and  their  free  will  and  pleasure, 
as  to  the  said  messuage  and  garden,  with  the  appurtenances  of  the 
said  plaintiff  belonging  and  appertaining.  Yet  the  said  defendant  well 
knowing  the  premises,  but  wrongfully  and  unjustly  contriving,  and 
intending  to  injure  the  said  plaintiff  in  that  behalf,  and  to  deprive 
him  of  the  use  and  benefit  of  his  said  way,  whilst  the  said  plaintiff 
was  so  possessed  of  his  said  messuage  (and  garden,)  with  the  ap- 
purtenances as  aforesaid,  to  wit,  on,  &c.  and  on  divers  other  days 
and  times  between  that  day  and  the  day  of  exhibiting  this  bill,  (or 
if  in  C.  P.  "the  day  of  the  commencement  of  this  suit,")  at,  &c. 
(venue)  aforesaid,  wrongfully  and  injuriously  placed  and  erected, 
and  caused  to  be  placed  and  erected,  divers  large  quantities  of  boards, 
planks,  and  wood,  and  across  the  said  way,  and  put  and  placed,  and 
caused  and  procured  to  be  put  and  placed,  divers  other  large  quanti- 
ties of  wood  and  timber  in  the  said  way,  and  kept  and  continued  the 
_^said  boards,  planks,  and  wood,  so  placed  and  erected  in  and  across 
the  said  way,  as  aforesaid,  and  also  the  said  other  wood  and  timber 
in  the  same  way  as  aforesaid,  for  a  long  space  of  time,  to  wit,  hitherto, 
and  thereby  during  all  the  time  aforesaid,  the  said  way  was  and  still 
is  greatly  obstructed  and  stopped  up,  and  the  said  plaintiff  by  means 
thereof  could  not,  during  the  time  aforesaid,  or  any  part  thereof,  nor 
can  he  now  have  or  enjoy  his  said  way,  as  he  of  right  ought  to  have 
done,  and  otherwise  might  and  would  have  done,  and  hath  been  and 
is,  by  means  of  the  premises,  deprived  of  the  use,  benefit,  and  ad- 
vantage thereof,  to  wit,  at  &c.  Wherefore  the  said  plaintiff  saith 
that  he  is  injured,  and  hath  sustained  damage  to  the  amount  of 
£ .,  and  therefore  he  brings  his  suit,  &c. 


GERBER  V.  GRABEL. 

(Supreme  Court  of  Illinois,  1854.     16  111.  217.) 

The  declaration  averred,  in  the  first  count,  that  the  plaintiff,  before 
and  at  the  time  of  the  committing  of  the  grievance  thereinafter  men- 
tioned, was  and  still  is,  lawfully  possessed  of  a  certain  messuage  or 
dwelling-house,  with  the  appurtenances,  situate  and  being-on,  etc.,  in 
the  town  of  Edwardsville,  etc.,  in  which,  during  all  the  time,  etc.,  there 
were,  and  still  of  right  ought  to  be,  divers,  to  wit:  two  windows, 
through  which  the  light  and  air,  during  all  the  time  aforesaid  ought 
to  have  entered,  and  still  ought  to  enter,  etc.  Yet  that  the  defendant, 
well  knowing  the  premises,  etc.,  contriving,  etc.,  and  to  annoy  him, 


06  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

etc.,  therefore,  to  wit:  on  the  first  day  of  January,  1854,  wrongfully 
and  injuriously  erected  and  raised,  etc.,  a  certain  wall  and  building 
near  to  and  against  the  said  windows,  and  wrongfully,  etc.,  kept  the 
same  erected  for  a  long  space  of  time,  to  wit :  from  the  day  and  year 
aforesaid,  hitherto.    By  means  whereof,  etc. 

The  other  pleadings  and  proceedings  are  described  in  the  opinion 
of  the  Court. 

This  cause  was  heard  before  Underwood,  Judge,  at  October  special 
term,  1854,  of  the  Madison  Circuit  Court. 

ScATES,  J.^°  This  is  an  action  on  the  case  for  obstructing  and 
excluding  the  light  and  air  from  passing  through  the  windows  into 
the  plaintiflf's  dwelling-house,  situated  on  lot  127,  in  Edwardsville, 
by  the  erection  of  a  wall  and  building,  by  the  defendant,  by  which 
the  house  is  rendered  close,  uncomfortable,  unwholesome,  and  unfit 
for  habitation,  and  plaintiff  is  greatly  annoyed  and  incommoded  in 
the  use,  possession  and  enjoyment.  The  second  count  is  for  continu- 
ing this  obstruction;  and  the  third  count  is  general,  for  obstructing 
and  excluding  light  and  air,  through  the  windows,  without  specifying 
the  means. 

Plea,  not  guilty;  and  verdict  for  plaintiff  for  $45.  On  motion, 
the  court  arrested  the  judgment,  and  gave  judgment  ip  favor  of  the 
defendant  for  costs. 

There  are  two  questions:  one  on  the  sufficiency  of  the  pleadings, 
and  the  other  on  the  existence  of  the  right,  under  the  common  law 
of  this  State. 

The  declaration  does  not  prescribe  for  ancient  lights,  but  declares 
generally  that  plaintiff  is  possessed  of  the  house,  and  has,  and  ought 
to,  enjoy  a  right  to  the  light  and  air  through  these  windows.  It  is 
objected  that  this  is  insufficient. 

In  most  of  the  early  declarations  for  disturbance  of  lights,  and  for 
nuisances,  a  prescription  was  alleged.  But  at  an  early  day  this  ancient 
rule  of  prescribing  was  relaxed,  and  by  the  modern  rule,  this  dec- 
laration is  sufficient  to  admit  proofs  of  the  right,  whether  it  arise 
upon  a  prescription,  by  contract,  or  otherwise,  by  estoppel,  etc.  1 
Chit.  PI.  379,  381,  2;  Sands  v.  Trefuses,  4  Cro.  Car.  575;  Cox  v.  Mat- 
thews, 1  Ventr.  237;  St.  Johns  v.  Moody,  Id.  274;  Penwarden  v. 
Ching,  1  Mood.  &  Malk.  400  (22  Eng.  C.  L.  R.  341);  Hughes  v. 
Keme,  Yelv.  216,  note  1;  Coryton  v.  Lithebye,  2  Saund.  113,  114, 
and  notes ;  Yard  v.  Ford,  Id.  175 ;  Story  v.  Adin,  12  Mass.  159,  7 
Am.  Dec.  46. 

The  old  rule  seemed  to  recognize  a  distinction  between  an  owner 
of  the  land,  and  a  mere  trespasser;  and  that  a  prescription  should 
be  averred  as  to  the  former,  while  an  allegation  of  possession  in  the 
plaintiff  of  the  property  injured,  was  good  as  to  the  latter,  Yelv. 
216,  note  1 ;    but  no  distinction  is   recognized  in  the  modern  rule. 

18  Part  of  the  opinion  omitted. 


Ch.  3)  CASE  97 

And  we  deem  the  general  averments  of  possession  and  right,  sufficient 
to  admit  proof  of  the  true  claim  and  interest.  Legislation  has  con- 
formed to  these  improvements  in  the  rules  of  pleading,  in  the  old 
possessory  ejectment,  now  converted  into  a  real  action  of  title. 

But  in  personal  actions  for  injuries  to  the  realty,  this  general  mode 
of  stating  the  right,  does  not  extend  to  the  plea  or  subsequent  plead- 
ings, for  the  party  must  show  and  prescribe  in  the  que  estate,  1  Chit. 
PI.  383,  until  released  by  Stat.  2  and  3  Wm.  IV,  cap.  71,  to  which 
I  shall  have  occasion  more  particularly  to  refer,  in  noticing  the  re- 
maining question  as  to  the  right  in  this  case.     *     *     * 

Judgment  reversed.^' 


DECLARATION  IN  CASE  FOR  NEGLIGENCE. 

(Encyclopedia  of  Forms.     Forms  No.  14,398,  and  No.  6,944.) 

State  of  ,    ^  In  the  Circuit  Court, 

County  of .J         Term,  A.  D.   18—. 

,  the  plaintiff  in  this  case,  complains  of  ,  the  defend- 
ant, in  an  action  of  trespass  on  the  case.    For  that  the  said  defendant 

corporation,  on  the day  of ,  18 — ,  owned  and  was  then 

operating  a  street  railway  in  said  ,  and  then  and  there  using 

its  said  business  cars  driven  along  the  street  by  means  of  electricity ; 
that,  on  said  day,  while  the  plaintiff  was  lawfully  driving  his  team, 
consisting  of  his  horse  and  road-cart  to  which  his  horse  was  prop- 
erly harnessed,   said  horse,   harness,   and   road-cart  being  then  and 

there  suitable  and  proper  to  be  used  by  him,  over  and  upon  

Street,  a  public  highway  in  said whereon  said  defendant  was 

then  and  there  maintaining  its  track  and  operating  and  driving  its 
cars  as  aforesaid,  said  plaintiff  being  then  and  there  in  the  exercise  of 
due  and  proper  care  and  without  negligence  on  his  part,  an  electric  car 

17  Anonymous,  Cro.  Car.  325  (1639) ;  Rider  v.  Smith,  3  D.  &  E.  766  (1790) ; 
Bailiffs  V.  Diston,  6  East,  438,  note  a  (1805) ;  Parker  v.  Hotchkiss,  25  Conn. 
321  (1856) ;  Gushing  v.  Adams,  18  Pick.  (Mass.)  110,  114  (1836 :  allegation  of 
ownership  of  land  to  which  easement  appurtenant  held  good  as  equivalent 
to  allegation  of  possession);  Standiford  v.  Goudy,  6  W.  Va.  364  (1873).  Ac- 
cord. See,  also,  2  Williams'  Saunders  Rep.  113  a,  note  1 ;  Id.  172,  note  1 ; 
21  PI.  &  Pr.  912. 

In  Smith  v.  Wiggin,  51  N.  H.  156  (1871),  it  was  said  that  an  allegation 
alone  that  plaintiff  had  a  right  to  the  easement  would  be  good. 

Where  the  right,  though  intangible,  is  not  appurtenant  to  land  a  simple 
allegation  that  plaintiff  has  the  right,  describing  it,  is  sufHcieut.  Dent  v. 
Oliver,  Cro.  Jac.  43  (1605);  Chapman  v.  Flexman,  2  Ventr.  291  (169S) ;  Smith 
V.  Wiggin,  51  N.  H.  156  (1871) ;  Patrick  v.  Ruffners,  2  Rob.  (Va.)  220,  226,  40 
Am.  Dec.  740  (1843). 

Where  the  plaintiff's  interest  in  the  right  is  reversionary  that  should  ap- 
pear.    Patrick  v.  Ruffners,  2  Rob.  (Va.)  220,  227,  40  Am.  Dec.  740  (1843). 

The  act  by  which  the  defendant  violated  the  right  must  be  stated.  Maen- 
ner  v.  Carroll,  46  Md.  193,  214  (1876). 

WHIT.C.L.PL.— 7 


98  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

of  the  defendant,  then  and  there  managed,  controlled,  directed,  gov- 
erned, and  operated  by  the  servants  and  agents  of  the  defendant,  said 
car  being  then  and  there  propelled  by  the  defendant  at  a  rate  of  speed 
greatly  in  excess  of  the  maximum  rate  of  speed  prescribed  by  law  and 

the  ordinances  of  the  city  of in  such  case  made  and  provided, 

and  in  violation  of  said  ordinances,  was  then  and  there  negligently, 
carelessly  and  at  an  undue,  unreasonable,  dangerous  and  unlawful 
rate  of  speed  driven  by  the  said  defendant  against  the  road-cart  con- 
taining the  plaintiff,  so  that  the  plaintiff  was  then  and  there  thrown 
suddenly  and  with  great  force  and  violence  from  his  seat  down 
upon  the  ground  and  upon  the  track  of  the  defendant,  was  stunned 
by  the  fall,  his  right  hand  run  over  by  the  wheel  of  said  car,  his  body 
bruised  and  jammed,  his  leg  and  body  severely  burned  by  the  electric 
current,  and  he  then  and  there  sustained  other  great  and  painful  bodily 
injuries,  external  and  internal;  in  consequence  of  which  he  suffered 
greatly  in  body  and  mind,  was  compelled  to  have  his  said  right  hand 
amputated,  to  submit  to  a  long  course  of  medical  and  surgical  treat- 
ment for  his  recovery  from  said  injuries,  and  put  to  great  expense 
for  medicine,  medical  attendance,  and  nursing,  and  has  been  other- 
wise greatly  damaged,  to  the  plaintiff's  damage  dollars. 


ENSLEY  RY.  CO.  v.  CHEWNING. 

(Supreme  Court  of  Alabama,  1890.    93  Ala.  24,  9  South.  458.) 

Appeal  from  city  court  of  Birmingham ;    H.  A.  Sharpe,  Judge. 

CivOPTON,  J.^^  The  defect  in  the  first  count  of  the  complaint  as- 
signed as  cause  of  demurrer  consists  in  the  omission  to  state  facts 
showing  a  duty  owing  by  defendant  to  plaintiff,  and  its  negligent 
performance.  After  stating  that  defendant  was  engaged  in  the  busi- 
ness of  a  common  carrier  of  passengers,  propelling  cars  by  steam,  the 
count  avers,  generally,  that  the  company  "did,  through  its  agents  and 
servants,  so  carelessly,  negligently,  and  improperly  propel  and  drive 
an  engine  and  train,  so  being  used  by  said  defendant,  that  by  and 
through  the  carelessness,  negligence,  and  improper  conduct  of  the  said 
defendant,  by  its  agents  and  servants,  the  engine  and  train,  so  being 
propelled  and  driven  as  aforesaid,  ran  against  plaintiff  with  great 
force  and  violence,"  knocking  him  down,  and  injuring  him,  as  therein 
stated.  For  aught  that  appears  from  the  count,  plaintiff  may  have 
been  a  passenger,  or  an  employe,  or  a  mere  trespasser.  Admitting 
of  more  than  one  construction,  that  least  favorable  to  plaintiff  will  be 
adopted. 

While  it  has  been  said  that  the  Code  forms  of  pleading  consist 
of  general  allegations  of  legal  conclusions,  rather  than  a  statement  of 

18  statement  of  facts  and  part  of  opinion  omitted. 


Ch.  3)  CASE  99 

the  particular  facts  which  will  support  them,  and  though  the  statute 
requires  that  "all  pleadings  must  be  as  brief  as  is  consistent  with 
perspicuity,  and  the  presentation  of  the  facts  or  matter  to  be  put  in 
issue  in  intelligible  form,  *  *  *  yet  the  facts  must  be  so  presented 
that  a  material  issue  in  law  or  fact  can  be  taken  by  the  adverse  par- 
ty thereon."  Code,  §  2664.  Ordinarily,  the  rules  of  good  pleading 
require  that  the  facts  from  which  the  conclusion  of  negligence  is 
deducible  should  be  averred,  not  mere  conclusions  of  law.  City 
Council  V.  Gilmer,  33  Ala.  116,  70  Am.  Dec.  562;  Insurance  Co.  v. 
Moog,  78  Ala.  284,  56  Am.  Dec.  31.  This  rule  has  been  relaxed, 
from  necessity,  in  cases  where  the  cause  of  action  consists  in  the 
non-performance  or  misperformance  of  a  duty.  In  such  cases  the 
rule  has  been  thus  stated :  "When  the  gravamen  of  the  action  is  the 
alleged  nonfeasance  or  misfeasance  of  another,  as  a  general  rule  it 
is  sufficient  if  the  complaint  aver  facts  out  of  which  the  duty  to  act 
springs,  and  that  the  defendant  negligently  failed  to  do  and  perform, 
etc. ;  not  necessary  to  define  the  quo  modo,  or  to  specify  the  particu- 
lar acts  of  diligence  he  should  have  employed  in  the  performance  of 
such  duty."  The  reason  given  is :  "What  the  defendant  did,  and  how 
he  did  it,  and  what  he  failed  to  do,  are  generally  better  known  to 
the  defendant  than  to  the  plaintiff;  and  hence  it  is  that  in  such  cases 
a  general  form  of  averment  is  sufficient."  Leach  v.  Bush,  57  Ala. 
145.  Under  the  rule  as  thus  stated,  a  general  averment  of  the  negli- 
gence  has^^een  held  sufficient,  when  the  complaint  averred  that  tlie_ 
"plaintiff  sustained  the^  relation  of  passenger  to  the  railroad  company, 
^  or  waT^an  infant  of  tender  years,  not  capable  of  contributory  negli- 
gence, or  that  the  injury  was  to  stock.  Railroad  Co.  v.  Jones,  83  Ala. 
376,  3  South.  902;  Railway  Co.  v.  Crenshaw,  65  Ala.  566;  Railroad 
Co.  V.  Thompson,  62  Ala.  494.  The  statement  of  either  of  the  fore- 
going facts  has  been  regarded  as  a  sufficient  averment  of  facts,  show- 
ing the  duty  to  act ;  but  in  no  case,  except  in  Railroad  Co.  v.  Waller, 
48  Ala.  459,  has  a  general  averment  of  simple  negligence  been  held 
"efficient  wherT'nof  accompanied  by  an  averment  of  facts  from  which  ^ 
^Ee^^HutJ^Wil^^^^sr' Tnlhat  irase  the  death  of  plaintiff's  intestate  re- 
sulted from  a  collision.  The  complaint,  as  in  this  case,  did  not  state 
that  the  decedent  was  a  passenger  or  employe,  or  had  any  connection 
with  the  railroad  company.  The  ruling  that  the  complaint  contained 
a  proper  statement  of  facts  was  based  on  the  erroneous  principle  thai 
the  collision  itself,  and  the  consequent  death  of  plaintiff's  intestate 
were  facts  sufficient  to  create  a  presumption  of  negligence,  for  which 
the  defendant  was  responsible.  Under  our  decisions,  a  trespasser 
cannot  maintain  an  action  against  a  railroad  company  for  injuries 
sustained  while  trespassing  on  its  road-bed,  unless  such  injuries  were 
caused  by  reckless,  wanton,  or  intentional  negligence.  If  a  complaint 
affirmatively  shows  that  the  plaintiff  is  a  trespasser,  an  actionable 
injury  is  not  shown,  unless  alleged  to  have  been  caused  recklessly,  wan- 
tonly, or  intentionally.    The  presumption  of  negligence  of  such  charac- 


100  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

ter  and  degree  does  not  arise  from  the  mere  fact  of  injury  to  a  tres- 
passer. The  count,  failing  to  aver  any  relation  or  connection  between 
plaintiS^nd  "defendant  which  creates  the  duty  to^use  the  highest  de^ 
gree  oflrare,  should  therefore  be  construed  as  if  he  were  an  intru^erT 
'=^t  may  be  that,  had  the  count  aveired  the  engine  and  train  were 
run  against  plaintiff  by  reckless,  wanton,  or  intentional  negligence, 
it  would  have  been  held  sufficiently  certain — comporting  with  our 
system  of  pleading — though  no  special  acts  or  omissions  constitut- 
ing the  negligence  were  averred.  But  when,  in  such  case,  the  com- 
plaint avers  simple  negligence,  it  is  insufficient,  the  same  as  if  it  had 
affirmatively  shown  that  plaintiff  was  a  trespasser. 

Neither  can  the  doctrine  of  error  without  injury  be  applied  when 
the  defendant  is  compelled  to  take  issue  on  an  insufficient  count; 
especially  in  view  of  the  fact  that  the  court  refused  to  instruct  the  jury 
that  plaintiff  could  not  recover  under  the  defective  count.     *     *     * 

Reversed  and  remanded.^* 


SOUTHERN  EXPRESS  CO.  v.  McVEIGH. 

(Court  of  Appeals  of  Virginia,  1871.     20  Grat.  264.) 

In  December,  1866,  Wm.  N.  McVeigh  instituted  an  action  in  the 
Circuit  Court  of  Richmond  against  the  Southern  Express  Company. 
The  declaration  contained  four  counts.  The  first  count  set  out  that 
the  defendants  were  a  corporation  doing  business  in  the  States  of 
Georgia,  North  Carolina  and  Virginia.  That  they  were  common  car- 
riers, and  were  engaged  in  carrying  goods  and  merchandise,  for  hire, 
to  and  from  places  within  said  States,  and  particularly  from  the  town 
of  Charlotte,  in  North  Carolina,  to  the  city  of  Richmond,  in  Vir- 
gina.  And  that,  on  the  25th  of  November,  1864,  the  plaintiff  was  de- 
sirous of  forwarding  and  having  conveyed  from  the  said  town  of 
Charlotte,  to  the  city  of  Richmond,  certain  goods,  viz:  &c.,  of  the 
value  of  $300,000.     And  that  on  the  24th  of  November  the  plaintiff 

10  Brown  v.  Mallet,  5  C.  B.  599.  616  (1S4S) ;  Hewison  v.  City,  34  Conn. 
136,  91  Am.  Dec.  718  (18G7 :  wrongful  de.Tth);  World's  Exposition  v.  France. 
91  Fed.  64,  70,  33  C.  C.  A.  333  (1S98 :  Illinois  law) ;  Mackey  v.  Mill  Ca,  210 
III.  115,  71  N.  E.  448  (1904 :  master  and  servant) ;  Maenner  v.  Carroll,  46 
Md.  193,  212  (1876) ;  Cristanelli  v.  Mining  Co.,  154  Mich.  423,  117  N.  W.  910 
(1908:  master  and  servant)  semble;  Breese  v.  Railroad  Co.,  52  N.  J.  Law, 
250,  19  Atl.  204  (1890 :  carrier) ;  Hess  v.  Lupton;  7  Ohio,  216  (1835) ;  Edwards 
V.  Brayton,  25  R,  I.  597,  57  Atl.  784  (1904);  "V\Tiitelaw  v.  Railway,  84  Tenn. 
391,  1  S.  W.  37  (1886 :  master  and  servant) ;  Kennedy  v.  Morgan,  57  Vt.  iO 
(1885);  Hortenstein  v.  Railroad  Co.,  102  Va.  914,  47  S.  E.  996  (1904:  wrong- 
ful death).  Accord.  The  following  earlier  cases  contra  in  Alabama  and  Vir- 
ginia have  been  overruled :  Ala.  Co.  v.  Waller,  48  Ala.  459  (1872) ;  Bait.  & 
Ohio  R.  R.  V.  Sherman's  Adm'x,  30  Grat.  (Va.)  602  (1S7S) ;  Birckhead  v.  Rail- 
way Co.,  95  Va.  648,  29  S.  E.  678  (1898).  For  many  other  citations  see  29 
Cyc.  566 ;    14  PI.  &  Pr.  331. 

It  is  well  settled,  on  principles  to  be  hereafter  discussed,  that  an  allega- 
tion that  one  owes  a  stated  duty  is  an  allegation  of  law  and  worthless ;  the 
facts  creating  the  duty  must  be  alleged.     14  PI.  &  Pr.  332;   29  Cyc.  567. 


eh.  3)  CASE  103 

delivered  to  the  defendants,  they  being  common  carriers,  at  a  cer 
tain  place  in  the  town  of  Charlotte,  being  the  place  used  by  them  in 
the  way  of  their  business  as  common  carriers,  for  the  receipt  of  par- 
cels and  goods  to  be  by  them  carried  and  conveyed  as  such  common 
carriers,  the  said  goods  and  merchandise,  to  be  by  the  defendants  car- 
ried and  conveyed  from  the  town  of  Charlotte  to  the  city  of  Rich- 
mond, to  be  delivered  by  the  defendants  for  the  plaintiff,  for  certain 
reward  to  the  defendants.  Yet  the  said  defendants,  not  regarding, 
&c.,  did  not  take  proper  care  of  the  same  but  took  such  bad  care  of 
them  that  the  goods  were  destroyed  by  fire  at  Charlotte. 

The  second  count  sets  out  that  on  the  25th  of  November,  1864, 
at  the  town  of  Charlotte,  the  plaintiff  caused  to  be  delivered  to  the 
defendant  certain  goods,  viz :  &c.,  of  the  value  of  $200,000,  to  be  taken 
care  of  and  safely  carried  and  conveyed  by  them  from  Charlotte  to 
Richmond,  and  at  Richmond  to  be  safely  delivered  by  the  defendants 
for  the  plaintiff,  within  a  reasonable  time  then  next  following,  for 
certain  hire  and  reward:  and  although  the  defendants  accepted  the 
said  goods  for  the  purpose  aforesaid,  and  undertook  the  carriage, 
conveyance  and  delivery  as  aforesaid,  within  such  reasonable  time; 
and,  though  such  reasonable  time  hath  long  since  elapsed,  yet  the  de- 
fendants, not  regarding  their  duty,  &c.,  but  contriving,  &c.,  did  not  nor 
would,  within  such  reasonable  time,  or  at  any  time  afterwards,  take 
care  of  or  safely  carry  the  said  goods  from  Charlotte  to  Richmond, 
nor  deliver  the  same  at  Richmond  for  the  plaintiff;  but  had  neg- 
lected and  refused  so  to  do;  and  by  reason  of  the  negligence  and 
improper  conduct  of  the  defendants,  the  goods  were  not  delivered  to 
or  for  the  plaintiff  at  Richmond  or  elsewhere,  and  are  wholly  lost 
to  the  plaintiff  at  the  said  town  of  Charlotte. 

The  third  count  sets  out,  that  on  the  25th  of  November,  1864,  at 
the  town  of  Charlotte,  the  plaintiff  did  present  to  the  defendants  a 
list  in  writing  of  certain  goods  then  about  to  arrive  at  the  depot  of 
the  Charlotte  and  South  Carolina  Railroad  Company,  in  the  town 
of  Charlotte,  to  wit,  &c.,  of  the  value  of  $200,000,  which  the  plain- 
tiff was  desirous  to  have  conveyed  and  carried  to  Richmond  and  de- 
livered to  the  plaintiff;  and  the  defendants  did  then  and  there  un- 
dertake to  remove  and  deposit  said  goods  in  their  warehouse  as  soon 
as  possible  on  arrival  of  the  goods  at  the  town  of  Charlotte,  to  wit : 
at  the  said  depot,  and  to  carry  them  from  Charlotte  to  Richmond 
within  a  reasonable  time,  for  certain  hire  and  reward  to  the  defend- 
ants. And  the  plaintiff,  on  the  25th  of  November,  1864,  at  Charlotte, 
did  pay  to  the  defendants  the  sum  demanded  by  them  of  him  as  re- 
ward for  freight  and  insurance  of  said  goods,  to  wit:  the  sum  of 
$5,623.50,  and  the  defendants  then  and  there  did  give  a  receipt  in 
writing  for  said  money  received  for  freight  and  insurance.  And  the 
plaintiff  avers  that  the  said  goods  afterwards,  viz :  on  the  26th  of 
November,  1864,  arrived  in  Charlotte,  viz :  at  the  depot  of  the  Char- 
lotte and  South  Carolina  Railroad  Company,  therein  situate,  and  were 


102  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

ready  for  removal  by  the  defendants,  and  that  the  defendants  had  due 
notice  of  the  same.  Yet  the  defendants,  not  regarding  their  duty  in 
that  behalf,  but  contriving,  &c.,  did  not  nor  would,  on  the  arrival  of 
the  goods  at  Charlotte,  nor  at  any  time  afterwards,  remove  said  goods 
from  the  said  depot  and  deposite  the  same  in  their  warehouse  and 
carry  them  to  Richmond,  and  there  deliver  the  same  to  the  plaintiff, 
but  wholly  neglected  and  refused  so  to  do.  And  by  means  of  the  neg- 
ligence and  improper  conduct  of  the  defendants,  the  said  goods  have 
not  been  delivered  to  or  for  the  plaintiff  at  Richmond  or  elsewhere, 
and  are  wholly  lost  to  the  plaintiff. 

The  fourth  count  sets  out  that  on  the  25th  of  November,  1864, 
the  defendants  were  expressmen  and  forwarders  of  goods  engaged  in 
the  business  of  receiving  and  forwarding,  for  those  who  might  offer 
them,  for  a  reward,  goods  and  merchandize,  and  the  like,  from  Char- 
lotte to  Richmond,  and  the  course  and  usage  of  their  business  was, 
when  requested  by  their  owners,  to  receive  such  things  destined  for 
Richmond  of  the  Charlotte  and  South  Carolina  Railroad  Company 
at  their  depot  in  Charlotte,  and  forward  the  same  to  Richmond,  stor- 
ing them  in  their  warehouse  in  the  town  of  Charlotte  until  they  could 
be  sent  off,  when  there  was  delay  in  sending  them  off  by  the  rail- 
roads connecting  Charlotte  and  Richmond,  in  cars  of -the  said  rail- 
road, the  use  of  which  for  that  purpose  was  allowed  to  the  defendants 
by  agreement  between  them  and  the  said  railroad  companies,  the  de- 
fendants receiving  of  the  shippers  entire  cost  and  charges  of  such 
transportation  from  Charlotte  to  Richmond,  so  that  the  latter  had 
nothing  to  pay  for  the  same  to  the  said  railroad  companies ;  and 
also  receiving,  when  agreed  on,  of  the  shippers,  in  addition  to  the 
charges  of  transportation,  a  price  for  insurance  of  the  articles  ship- 
ped against  loss  or  damage  arising  from  the  dangers  of  railroad 
transportation,  fire,  &c.  The  contract  for  receiving,  storing  and  car- 
rying the  goods,  and  the  arrival  of  the  goods  at  the  railroad  depot 
in  Charlotte,  is  set  out  as  in  the  third  count,  except  that  it  charges 
that  the  defendants  undertook  to  insure  the  goods  against  damage 
by  fire,  &c.,  for  a  reward ;  and  it  avers  that  the  plaintiff  had  given 
orders  to  the  railroad  company  to  deliver  the  goods  to  the  defendants 
when  they  might  demand  the  same.  And  the  conclusion  of  the  count 
is  the  same,  except  that  it  avers  that  the  goods  were  lost  at  Charlotte 
by  a  fire,  which  consumed  them  in  the  warehouse  of  the  Charlotte 
and  South  Carolina  Railroad  Company. 

The  defendants  appeared  and  demurred  generally  to  the  declara- 
tion and  each  count  thereof ;  but  the  demurrer  was  overruled  by  the 
court. 

Anderson,  J.,^"   delivered  the  opinion  of  the  court. 

This  is  an  action  on  the  case  against  an  express  company.  There 
are  four  counts  in  the  declaration.     The  first  is  the  usual  count  in 

2oStatement     of  facts  abridged  aud  part  of  opinion  omitted. 


Ch.  3)  CASH  103 

case  ag-ainst  a  common  carrier.  The  other  counts,  the  plaintiffs  in 
error  contend,  are  in  assumpsit,  and  therefore  improperly  joined  with 
the  first  count  in  case  for  tort.  The  question  is  raised  by  a  general 
demurrer  to  the  declaration,  and  to  each  count  thereof,  which  was  over- 
ruled by  the  Circuit  Court.     This  is  the  first  error  assigned. 

The  first  count  is  properly  conceded  to  be  in  case  for  tort.  If 
the  other  counts  are  not  in  tort,  the  declaration  is  clearly  bad  for 
misjoinder,  and  the  demurrer  well  taken. 

It  is  contended  for  the  defendants  in  error,  that  all  the  counts  are 
properly  in    case,    and   that   consequently   the   demurrer   was    rightly 
overruled.     The  case  has  been  elaborately  argued,  and  much  learning 
evolved  upon  the  interesting  question.     I  have  carefully  looked  into 
nearly  all  the  numerous  cases  cited,  as  well  as  others.     To  state  and 
'  go  through  them  all  would  be  tedious  and  unnecessary.     What- 
ever else  may  be  drawn  from  them  (which  it  is  not  necessary  now  to 
inquire),  I  think  the  following  conclusions,  which  have  an  important 
bearing  upon  the  case  in  hand,  are  clearly  deducible :     First,  that  an 
action  on  the  case  lies  against  a  party  who  has  a  public  employment 
— as,  for  example,  a  common  carrier  or  other  bailee,   for  a  breach 
of'3uty7"wncli  the law^  implies  frorn  his  employment  or  general  re- 
'"tatiom    TIiis~TsTTDt  "disputed.    And  second,  that  where  there  is  a  public" 
'    6mployrfient,_ironL which  arises  a  common  law  duty,  an  action  may 
'"^e~brought  in  Jort^  although  the  breach  of  duty  assigned  is  the  doing 
or  not  _doing  of   something,   contrary  to  an  agreement  made   in  the 
course  of  such  employment,  by  the  party  on  whom  such  general  duty. 
is  impo^ed,_  *     *     * 

Forthe  appellee  it  is  claimed  that  all  the  counts  proceed  against 
the  defendants  as  common  carriers.  Let  us  see  whether  the  second, 
third  and  fourth  counts  proceed  against  them  in  that  character.  The 
fourth  count,  as  well  as  the  first,  sets  out  the  public  character  of  the 
defendants,  substantially,  as  common  carriers.  They  are  described 
as  expressmen  and  forwarders,  engaged  in  receiving  goods  from 
those  who  might  offer  them,  and  transporting  them  for  reward  from 
Charlotte,  North  Carolina,  to  Richmond,  Virginia,  in  cars  cf  the 
railroads,  the  use  of  which  was  allowed  to  them  by  agreement  between 
them  and  the  railroad  companies ;  the  defendants  receiving  f rem  the 
shippers  entire  costs  and  charges  of  such  transportation ;  so  that 
the  shippers  had  nothing  to  pay  to  the  railroad  companies  for  trans- 
portation. It  is  true  that  in  this  description  of  the  character  and 
relation  of  the  defendants,  they  are  not  expressly  alleged  to  be  com- 
mon carriers.  But  the  facts  set  out  constitute  them  to  be  snch  in 
law.  2  Redf.  on  Railw.  p.  16;  Southern  Express  Co.  v..  Newby,  36 
Ga.  635,  91  Am.  Dec.  783.  An  express  company  ^jsjto  be  regarded 
as  a  common  carrier,  and  itsTesponsTbilities  for  the  safe  deHvery  oiT 
'~~^Tc^pXii^ni[j^  entrusted  to^,  is  the  samgas^inat_j^jLthej:arrjer.  Belger 
v.  Dinsmore,  ^  Barb.  (N.  Y^'69.  Numerous  other  cases  might  be 
cited,  but  more  are  not  needed. 


104  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

The  second  and  third  counts  do  not  set  out  the  character  of  the 
defendants  as  common  carriers.  Held,  on  general  demurrer,  not  to 
be  necessary.  Pozzi  v.  Shipton,  8  Adol.  &  El.  574,  But  they  are 
sued  as  an  express  company,  which  is  prima  facie  a  common  carrier. 
Redf.  on  Carriers,  p.  45,  §  58.  And  they  are  consequently,  as  suqh, 
declared  against  in  all  the  counts.^^ 

The  question  now  arises,  do  the  facts,  as  set  out  in  the  declara- 
tion, which  upon  demurrer  must  be  taken  to  be  true,  show  that  the 
goods  were  delivered  to  the  defendants,  so  as  to  charge  them  as 
carriers?  The  first  and  second  counts  expressly  allege  a  delivery 
of  the  goods  to  the  defendants.  According  to  the  third  and  fourth 
counts,  an  actual  delivery  was  not  made.  But  the  goods  were  de- 
livered at  the  place  where  the  defendants  agreed  to  receive  them.  And 
the  defendants  had  due  notice  of  their  delivery  at  that  place.  Does 
this  constitute  in  law  a  delivery  to  them  in  their  public  character  of 
carriers?  22     *     *     * 

As  common  carriers,  then,  the  defendants  were  liable  for  the  safe 
delivery  of  the  goods  to  the  plaintiff  at  Richmond,  and  were  insurers, 
independently  of  their  express  agreement :  and  consequently  the  ac- 
tion against  them  is  properly  conceived  in  case. 

But  it  is  contended  for  the  plaintiffs  in  error,  that  th?  second,  third 
and  fourth  counts  do  not  proceed  in  case,  but  are  in  assumpsit,  be- 
cause they  do  not  aver  a  duty,  or  a  breach  thereof.     It  is  true  that 
they  do  not  aver,  totidem  verbis,  the  duty  of  the  defendants,  ^ut— 
they  aver  facts,  from  which  the  law  infers  a  duty^  wbirli  i<;  ^H  that_ 
is__necessary.^^     Lancaster  Canal   Co.  v,   Parnaby,  39  Eng.  C.  L.  R. 
54.    Each  of  thern  sets  forth^  facts,  from  whichrthe  law  injers  a  dutvi, 
and  then,  ayerrm^_that  the~defendants  not  regarding  their  said  duty, 
a <; <^]^^thflyre^^h^   The  court  is,  therefore,  of  opinion,  that  each 
""colmt  in  this  declaration  contains  allegations  sufficient  to  support  it 
in  case.    And  though  they  may  be  sufficient  in  assumpsit,  as  in  Church 
V.  Mumford,  11  John.  (N.  Y.)  480,  they  are  nevertheless  good  in  case; 
and  that,  therefore,  the  court  below  did  right  to  overrule  the  demur- 
rer.    *     *     * 

Judgment  affirmed.^* 

21  B.  &  O.  R.  R.  V.  Morehead,  5  W.  Va.  293,  299  (1872).  Accord. 

22  The  court  held  that  it  does. 

2  3  Wright  V.  McKee,  37  Vt.  161,  1&4  (1864).  The  rule  is  the  same  as  to 
negligence  generally.  Brown  v.  Mallet,  5  C.  B,'599,  615  (1848)  semble;  City 
V.  Breed,  30  Conn.  535,  551  (1862).  Also  as  to  wrongful  death  actions. 
Brothers'  Adm'r  v.  Railroad  Co.,  71  Vt.  48,  42  Atl.  980  (1898). 

2  4  An  allegation  that  the  defendant  is  a  common  carrier  is  necessary. 
Pozzi  V.  Shipton,  8  A.  &  E.  963.  974  (1838)  semble;  L.  &  N.  R.  Co.  v.  Gerson, 
102  Ala.  400,  14  South.  873  (1893)  semble. 

An  allegation  that  the  defendant  received  the  goods  is  necessary.  Max  v. 
Roberts,  12  East,  89  (1810) ;  Sommerville  v.  Merrill,  1  Port.  (Ala.)  107  (1834) ; 
North  Co.  V.  Liddicoat,  99  AH.  545,  551,  13  South.  18  (1892) ;  Barger  v.  St. 
B.  Co.,  54  111.  App.  284  (1894^-  Breese  v.  Railroad  Co..  52  N.  J.  Law,  250, 
19  Atl  204  (1890). 


Ch.  3)  CASE  105 

O'REILLY  V.  NEW  YORK  &  N.  E.  R.  CO. 

(Supreme  Court  of  Rhode  Island,  1889.    16  R.  I.  388,  17  Atl.  906, 
5  L.  R.  A.  364.) 

On  demurrer  to  the  declaration. 

DuRFEK,   C.  J.     The  declaration  contains  two  counts,  which   are 
severally  demurred  to.     The  cause  of  action   set  forth  in  the  first 
count  is  an  injury  to  the  plaintiff's  intestate  resulting  from  the  neg- 
ligence of  the   defendant  corporation.     The  injury  was    caused  by 
collision  between  a  locomotive  with  train  of  cars,  running  on  the  de- 
fendant's railroad,  and  a  buggy,  in  which  the  intestate  was  driving 
along  a  common  highway  across  said  railroad  at  grade,  at  a  place 
■  alleged   to  be  in   the  commonwealth  of  Massachusetts.     The  count 
alleges  that  the  intestate  was  greatly  injured,  her  limbs  broken,  and 
that  after  much  suffering  she  died.     The  plaintiff  sues  for  $30,000 
damages.    The  count  is  in  form  a  count  in  an  action  of  trespass_orL_ 
the  case  at  common  law,  but  it  does  not  ajlege  that  the  action  survives 
in  Massaxrhtrsefts  under  any  law  oF statute  of  that  state;    and  the  de^ 
^endantxcmtends  tTiat,  without  such  allegation,  the  count  is  bad,  since 
it^^Oes  rrof  survive  at  common  law,  and,  if  it  survives  under  any  stat- 
•-xrte~~€>-f  that_state,  the  existence  of  the  statute  must  be  pleaded  like 
—  any-other^iact  whiclrrs~esseritial  to  the  maintenance  of  the  action,  in- 
asmuch  as,  beirtg  the^statute  of  another  state,  the  court  will  not  take 
■  --judicial  notice  of  it.    We  tliink  the  point  is  well  taken.    The  cause^oT 
"^ction~accrued^  in^MaSsachu setts  under  and  in  virtue  of  the  law  in 
force  there,  and  if  under  the'  law  of  that  state  the  action  no  longer 
exists  there  it  no  longer  exists  here. 
Demurrer  sustained.^'' 


WESTCOTT  v.  CENTRAL  VERMONT  R.  CO. 

(Supreme  Court  of  Vermont,  1889.     61  Vt  438,  17  Atl.  745.) 

This  was  an  action  of  trespass  on  the  case,  brought  by  the  plain- 
tiff as  administratrix  of  the  estate  of  Samuel  S.  Westcott,  against 
the  defendant,  for  its  tortious  act  resulting  in  the  death  of  the  in- 

25  Chicago  R.  R.  v.  Schroeder,  18  111.  App.  328  (18S5)  semble;  Nashville 
Co.  V.  Sprayberry.  9  Heisk.  (Tenn.)  852  (1872)  semble;  Hobbs  v.  Railroad,  9 
Heisk.   (Tenn.)  873  (1872)  semble.  Accord.     See,  also,  5  PI.  &  Pr.  867. 

But  it  does  not  seem  to  be  necessary  to  allege  where  the  facts  arose. 
Hobbs  V.  Railroad  Co.,  9  Heisk.  (Tenn.)  873,  879  (1872). 

A  plea  that  death  occurred  in  another  state  is  good.  State-  v.  Railroad 
Co.,  45  Md.  41  (1876) ;    Nashville  Co.  v.  Eakin,  6  Cold.  (Tenn.)  582  (1869). 

Obviously,  if  the  statute  is  domestic,  it  need  not  be  alleged.  Westcott  v. 
Railroad  Co.,  61  Vt.  438.  441,  17  Atl.  745  (1889)  semble.  Accord.  So.  Ry.  v. 
Hansbrough,  105  Va.  527,  54  S.  E.  17  (1906 :  speed  regulation  ordinance  which 
made  defendant's  act  wrongful).  Contra.  Domestic  statutes,  generally,  need 
not  be  alleged.  Kansas  Co.  v.  Flippo,  138  Ala.  487,  498,  35  South.  457  (1903) ; 
Town  V.  Gallup,  22  Conn.  208  (1852) ;    20  PI.  &  Pr.  594. 


106  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

testate.  The  defendant  demurred  generally  to  the  plaintiff's  declara- 
tion. The  court  sustained  the  demurrer,  and  adjudged  the  declara- 
tion insufficient,  to  which  the  plaintiff  excepted.  The  following  is 
so  much  of  the  writ  and  declaration  as  is  material  to  an  understand- 
ing of  the  questions  raised  and  decided:  "By  the  authority  of  the 
state  of  Vermont,  you  are  hereby  commanded  to  attach,  *  *  * 
then  and  there  to  answer  unto  Addie  C.  Westcott,  of  Waterbury  in 
the  county  of  Washington,  administratrix  of  the  estate  of  Samuel 
S.  Westcott,  late  of  Burlington,  aforesaid,  deceased  leaving  a  widow 
and  one  minor  child,  as  such  administratrix,  whose  letters,"  etc.  Then 
follow  the  usual  averments  of  liability  on  the  part  of  the  defendant, 
but  without  any  reference  at  all  to  the  capacity  in  which  the  admin- 
istratrix sues,  or  for  whose  benefit,  or  for  what  purpose  the  suit  is 
brought;  concluding  in  these  terms:  "By  means  of  which  improper 
and  unlawful  acts  and  neglects  of  the  said  defendant  the  car  in  which 
the  said  Westcott  was  so  riding  and  being  transported  was  violently 
thrown  from  said  railroad  track,  and  he  was  thereby  then  and  there 
killed,  to  the  damage  of  the  plaintiff,  (as  such  administratrix,)  as 
she  says,  $20,000."  At  a  subsequent  term  of  court  the  plaintiff  filed 
an  additional  count,  substantially  like  the  one  contained  in  the  writ, 
but  concluding  in  these  words :  "By  means  of  all  which  improper 
acts  and  neglects  of  the  said  defendant  the  car  in  which  the  said 
Westcott  was  so  being  transported  was  violently  thrown  from  the 
railroad  track,  and  he  was  thereby  then  and  there,  and  within  two 
years  before  the  commencement  of  this  suit,  killed,  leaving  a  widow 
and  next  of  kin  surviving." 

Taft,  J.  When  the  death  of  a  person  results  from  the  tortious  act 
or  neglect  of  another,  two  rights  of  action  may  arise, — one  to  recover 
damages  sustained  by  the  deceased  at  the  time  of  or  after  the  injury 
and  prior  to  his  death;  the  other,  to  recover  damages  to  the  widow 
and  next  of  kin.  Both  rights  must  be  prosecuted  in  the  name  of  the 
personal  representative  of  the  deceased.  In  this  case  it  is  insisted, 
under  a  general  demurrer,  that  the  declaration  is  defective  in  that 
it  does  not  show  for  which  cause  of  action  the  plaintiff  is  seeking  to 
recover;  the  defendant  claiming  that  it  should  be  explicitly  averred 
whether  the  action  is  brought  for  the  benefit  of  the. estate,  or  of  the 
widow  and  next  of  kin.  We  think  it  should  so  appear  from' the 
declaration;  and  the  question  is,  does  it  in  the  one  under  considera- 
tion? It  is  apparent  that  the  substantial  averments  of  the  declaration 
in  both  cases  must  be  the  same,  i.  e.,  that  the  death  of  the  intestate 
was  caused,  in  this  state,  by  the  tortious  act,  neglect,  or  default  of 
the  defendant,  and  that  the  plaintiff  is  the  personal  representative 
of  the  deceased.  If  the  declaration  contained  the  above  averments, 
it  is  sufficient,  and  under  it  a  recovery  can  be  had  for  any  damages 
sustained  by  the  deceased  on  account  of  the  cause  of  action  mentioned 
in  R.  L.  §§  2134,  2135.  But  when  to  the  above  averments  is  added 
the  allegation  that  the  intestate  left  a  widow  and  next  of  kin,  or  either,- 


Ch.  3)  CASE  107 

it  sets  forth  a  cause  of  action,  under  the  subsequent  sections  2138, 
2139.  Every  fact  which  it  is  incumbent  upon  the  plaintiff  to  prove 
is  fully  set  forth  in  such  a  declaration.  Why,  then,  is  it  not  suffi- 
cient? It  is  only  by  force  of  the  statute  that  an  action  for  the  benefit 
of  the  widow  or  next  of  kin  can  be  maintained,  and,  in  bringing  it, 
the  pleader  could  have  recited  the  statute,  counted  upon  it,  or  with- 
out referring  to  it  in  any  manner,  alleged  these  facts,  which  brought 
this  case  within  the  terms  of  it,  stating  those  facts  upon  which  the 
claim  was  sought  to  be  maintained.  Gould,  PI.  c.  Ill,  §  15,  note  3. 
In  respect  of  this  question,  which  is  made  under  points  1,  2,  and  5  in 
the  defendant's  brief,  we  hold  the  declaration  sufficient  under  sections 
2138,  2139,  to  permit  a  recovery  for  the  benefit  of  the  widow  and  next 
of  kin. 

It  is  contended  that  there  is  no  allegation  that  the  deceased  left  a 
widow  or  next  of  kin ;  but  the  fact  is  otherwise.  In  the  original  writ 
the  person  killed  is  described  as  deceased,  leaving  a  widow  and  one 
minor  child.  This  part  of  the  writ,  although  descriptive  of  the  per- 
son, may  be  referred  to  to  help  but  the  want  of  a  material  averment 
in  the  declaration.  Church  v.  Westminster,  45  Vt.  380.  In  the  addi- 
tional count  it  is  alleged  that  Westcott  was  killed,  leaving  a  widow  and 
next  of  kin  surviving.  Such  an  allegation  is  undoubtedly  necessary,^^ 
and  in  that  respect  both  counts  are  sufficient.  There  is  no  allegation 
in  the  declaration  that  the  widow  and  next  of  kin  were  living  at  the 
time  the  suit  was  brought ;  and  the  defendant  insists  that  the  declara- 
tion is  defective  for  that  reason.  We  think  it  depends  upon  whether 
the  cause  of  action  dies  with  the  beneficiary.  The  statute  provides 
that  the  action  shall  be  brought  in  the  name  of  the  personal  repre- 
sentative of  th^~deceasedj  ahc[Il5atI5ihe_amount  recovered  ^shalj  be 
^lorTHebenefit  ofjthe^wife^nd  next_oiJkin."  The  recovery  being  sole- 
Ty~  for  their  benefit,  it  necessarily  follows  JhaL-the  action  cannot  be 
'maintained  if  there  are  noTsu^  persons  in  existence ;  and,  if  it  can- 
'not  be,  then  the^llegation  that  there  are  such  persons  in  existence 
"aFjHeTime^  the  suit  is  brought  is  necessary.  For  the  want  of  such 
an  allegation  the jleclaration  in  this  case  is  defective.  _ Woodward  v. 
RailwaTTo./ 23  Wis.  400;  State  v.  Railroad  Co.,  70  Md.  319,  17 
Atl.  88.     -^^    ^' 

26Quincy  Co.  v.  Hood,  77  111.  G8,  72  (1875)  semble;  State  v.  Railway  Co., 
GO  Me.  145,  151  (1872) ;  Commonwealth  v.  Co.,  5  Gray  (Mass.)  473  (1S55) ; 
Walker  v.  Railway  Co.,  104  Mich.  60G,  617,  G2  N.  W.  1032  (1895)  semble; 
State  V.  Gilmore,  24  N.  H.  4G1,  4G9  (1852) ;  Railroad  v.  Pitt,  91  Term.  86,  IS 
S.  W.  lis  (1S91) ;  B.  &  O.  R.  R.  v.  Gettle,  3  W.  Va.  376,  383  (18G9).  Accord. 
Columbus  Ry.  v.  Bradford,  86  Ala.  574,  580,  6  South.  90  (1888).  Contra. 

In  a  few  states  either  originally  or  by  a  change  in  the  statute  the  action 
survives  for  the  benefit  of  the  estate  whether  next  of  kin  survive  or  not. 
Under  such  statutes  an  allegation  of  the  survival  of  beneficiaries  is  of  course 
unnecessary.  B.  &  O.  Ry.  v.  Wightman,  29  Grat.  (Va.)  431,  437,  26  Am.  Rep. 
384  (1877) ;    Searle  v.  Railway,  32  W.  Va.  370,  9  S.  E.  248  (1889)  semble. 

See,  further,  5  PI.  &  Pr.  SG8;    13  Cyc.  342. 


108  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

The  difficulties  further  suggested  by  the  defendant's  counsel  in 
respect  to  being  unable  to  defend  the  case,  upon  the  ground  that  the 
elements  of  the  damages  are  not  sufficiently  set  forth,  are  not  those 
caused  by  any  defect  in  pleading,  but  such  as  can  always  be  removed 
by  suitable  specifications,  which  all  courts  have  full  power  to  order. 
The  English  statute  9  &  10  Vict,  requires  no  change  in  the  ordinary 
mode  of  declaring  for  the  injury,  but  requires  the  plaintiff  to  de- 
liver with  the  declaration  a  "full  particular  of  the  person  or  persons 
for  whom  or  in  whose  behalf  the  action  is  brought."  In  proceedings 
by  indictment  under  analogous  statutes  it  has  been  held  that  "it  is  suf- 
ficient if  the  administrator  is  named,  and  that  it  is  alleged  that  the  de- 
ceased has  left  heirs  at  law."  Com.  v.  Railroad  Co.,  11  Cush.  (Mass.) 
512;  Com.  v.  Railroad  Co.,  5  Gray  (Mass.)  473;  Com.  v.  Railroad 
Co.,  121  Mass.  36;  State  v.  Gilmore,  4  Fost.  (N.  H.)  461.  In  Rail- 
road Co.  V.  Gettle,  3  W.  Va.  376,  it  was  held  that  the  widow  and 
next  of  kin  should  be  accurately  set  forth  and  designated  by  name, 
and  that  the  damages  were  claimed  for  their  aid.  There  was  no  al- 
legation that  the  deceased  left  a  widow  and  kin,  and  the  declaration 
was  clearly  defective;  and,  while  the  remarks  of  the  judge  may 
not  have  been  obiter,  they  do  not  contain  a  correct  statement  of  the 
law. 

The  strict  rule  of  pleading  insisted  upon  by  the  defendant's  counsel 
would  require  an  allegation  of  every  fact  which  tends  in  the  least  de- 
gree to  affect  the  amount  of  damages  to  which  the  plaintiff  is  entitled. 
Under  what  rule  can  it  be  consistently  claimed  that  the  residence  of  the 
beneficiary,  the  extent  of  his  dependence,  or  his  age,  (although  the 
latter  facts  might  become  very  material  in  passing  upon  the  question 
of  damages,)  should  be  alleged  in  the  declaration?  There  is  no  rule 
requiring  it.  This  latter  point,  if  good  law,  could  not  avail  the  de- 
fendant under  a  general  demurrer ;  a  special  demurrer  only  could 
reach  it.  An  allegation  that  the  intestate  left  a  widow  and  next  of 
kin,  or  either,  and  that  they  were  living  at  the  commencement  of  the 
suit,  is  all  that  is  required  in  this  respect.  Judgment  affirmed,  with 
leave  to  replead. ^^ 

Tyler,  J.,  being  absent  in  county  court,  did  not  sit. 

^*T  Walker  v.  Co.,  104  Mich.  606,  617,  62  N.  W.  1032  (1895)  semble;  Geroux's 
Adm'r  v.  Graves,  62  Vt.  2S0,  19  Atl.  987  (1890)  semble.  Accord. 
.  The  names  of  the  beneficiaries  need  not  be  stated.  Conant  v.  Grifl3n,  48 
iAill.  410  (1868);  Commonwealth  v.  Corporation,,  11  Cush.  (Mass.)  512,  517 
(1853) ;  Hamilton  v.  Motor  Co.,  68  N.  J.  Law,  85,  52  Atl.  290  (1902).  Accord. 
State  V.  Railway  Co.,  60  Me.  145,  151  (1872).  Contra. 


Ch.  3)  CASH  109 

MAENNER  v.  CARROLL  et  al. 

(Court  of  Appeals  of  Maryland,  1876.    46  Md.  193.) 

Alvey^  J.,^^     delivered  the  opinion  of  the  Court. 

The  declaration  in  this  case  contains  ten  counts ;  and  to  the  third, 
fourth,  fifth,  sixth,  seventh  and  eighth,  the  defendants  demurred;  and 
to  the  other  counts  there  were  pleas  filed,  and  issues  joined.  The 
demurrers  were  sustained,  and  upon  trial  of  the  issues  of  fact  a 
verdict  was  rendered  for  the  defendants.  The  plaintiff  has  appealed, 
and  we  are  now  called  upon  to  review  the  rulings  of  the  Court  below. 

The  third  count,  the  first  demurred  to,  alleges  that  the  defendants 
were  owners  of  a  certain  open  and  unenclosed  lot  of  ground  within 
the  limits  of  the  City  of  Baltimore,  and  that  persons  were  in  the  habit 
of  passing  over  the  same;  and  that  the  defendants  cut  on  such  lot, 
in  a  dangerous  and  exposed  portion  thereof,  a  deep  excavation,  and 
left  the  same  in  a  dangerous  condition,  and  liable  to  injure  persons 
passing  over  the  said  lot;  and  that  the  plaintiff,  while  passing  over 
said  lot,  on  a  certain  night,  being  ignorant  of  the  excavation,  fell 
therein  and  was  injured. 

This  count  entirely  fails  to  state  a  sufficient  cause  of  action.  To 
constitute  _a_good  cause  of  action,  in  a^  case  of  this  nature,  there_ 
should  be  stated  a  right  on  the  part  of  the  plaintiff,  a  duty  on  the  part 
•""oTlhe  defendants  in  respect  to  thaFright,  and  a  breach  of  that  duty 
''BythedefendantsT^hereby  the  plaintiff  Tias  suffered  injuj;y.  Here 
there  is  nothing  oT  the  sort  shown.  All  the  facts  alleged  in  this  count 
may  be  true,  and  yet  the  plaintiff  would  have  no  right  of  action  against 
the  defendants.  The  fact  that  persons  were  in  the  habit  of  passing 
over  the  lot,  gave  to  the  plaintiff  no  right  to  do  so ;  and  unless  there 
was  such  right  there  was  no  breach  of  duty  on  the  part  of  the  de- 
fendants in  cutting  and  leaving  open  the  excavation.  A  party  has 
the  right  to  use  his  land  as  he  pleases,  except  as  he  may  be  restrained 
by  duty  to  the  public  or  to  private  individuals.     *     *     * 

As  is  stated  in  the  plaintiff's  brief,  the  fourth  count  differs  from 
the  third  in  alleging  that  there  was  a  public  highway  across  the  lot, 
and  that  the  defendants  permitted  a  deep  excavation  to  be  cut  over 
the  lot  and  across  this  highway,  and  the  plaintiff,  while  walking  on 
the  highway  at  night,  fell  into  the  excavation  and  was  injured.  And 
the  fifth  count  dift'ers  from  the  fourth  only  in  alleging  that  there  was 
a  roadway  in  public  general  use  across  said  lot,  instead  of  a  public 
highway,  as  alleged  in  the  fourth  count.  But,  in  considering  the  ques- 
tions that  arise  on  these  counts,  the  difference  mentioned  may  be  treat- 
ed as  matter  of  form  rather  than  substance,  as  by  so  doing  the  fifth 
count  is  taken  in  the  most  favorable  sense  to  the  plaintiff,  which, 
under  the  well  established  rules  for  the  construction  of  pleadings,  is 
not  allowed. 

2  8  statement  of  facts  and  part  of  opinion  omitted. 


no 


PLEADINGS   IN   TORT  ACTIONS 


(Part  1 


Now,  it  is  certainl 
'doing  o 


trne^JJTat^vgry^pr.sOTi  wlin  (\np<i  or  Hirprt.'j^the 
anT^t^tliat  will  of  necessity  xonstitute  Dxxreate  a  nui_sance^ 


is  personally,  responjjble  for  all  the  consequences  resulting'  therefrgnij 
whether  suchperson  be  employer  or  contractor.  Wilson  v,  Peto,  6 
Aloore,  49.  And  where,  as  in  this  case,  a  person  is  sought  to  be  made 
responsible  for  a  nuisance,  not  simply  on  the  ground  of  his  being  the 
owner  of  the  ground  on  which  the  nuisance  exists,  but  because  he 
has  ordered  or  directed  the  doing  of  an  act  in  a  public  highway 
which  has  created  a  nuisance,  it  is  necessary  that  the  act  be  alleged 
either  as  having  been  done  or  caused  to  be  done  by  the  defendant 
himself,  or  by  others  under  his  direction  and  authority.  Addison  on 
Torts,  197. 

Here,  the  allegation  is,  not  that  the  defendants  cut  the  excavation, 
and  left  it  in  a  condition  dangerous  to  persons  passing  along  the  high- 
way, but  that  they  permitted  others  to  do  so.  How  permitted?  The 
sulificiency  of  this  allegation  turns  upon  the  word  "permitted."  In 
what  particular  sense  it  was  used  by  the  pleader  is  altogether  uncer- 
tain. It  may  be,  for  aught  that  appears  on  the  face  of  these  counts, 
that  the  defendants  pemiitted  the  excavation  by  their  mere  silence 
and  failure  to  interfere,  or  by  not  taking  active  measures  to  prohibit 
the  making  of  the  excavation  over  the  lot  and  across  the  highway. 
Where  there  is  want  of  certainty  in  the  allegation  of  a  pleading,  the_ 
^'geiierar~ruleni7~that  the  sense  of  the  averment  is  toHbe  taken  most 
"^trolTgly  against  Jhe  pleader ;  jCliit.  PI.  237,  23By  and^'givirfgntoTlie" 
•"defeiidants"  the  benefit  of  this  rule,  the  counts  under  consideration 
fail  to  state  a  sufficient  cause  of  action.  Mere  permission  in  the 
sense  suggested,  would  not  be  sufficient  to  render  the  defendants 
liable,  without  something  more.  It  does  not  follow  that  because 
the  defendants  are  the  owners  of  the  lot  that  they  are  liable  for  all 
the  nuisances  that  may  be  created  thereon,  no  matter  by  whom.  This 
is  illustrated  in  the  case  of  landlord  and  tenant.  If  a  landlord  de- 
mise premises  which  are  not  in  themselves  a  nuisance,  but  may  or  may 
not  become  such,  according  to  the  manner  in  which  they  are  used  by 
the  tenant,  the  landlord  will  not  be  liable  for  a  nuisance  created  on  the 
premises  by  the  tenant.  He  is  not  responsible  for  enabling  the  tenant 
to  commit  a  nuisance,  if  the  latter  should  think  proper  to  do  so.  -  Ow- 
ings  V.  Jones,  9  Md.  108;  Rich  v.  Basterfield,  4  C.  B.  805,  (56  E. 
C.  L.  782).  In  such  case,  it  may  be  said,  in  one  sense,  that  the  land- 
lord permitted  the  tenant  to  create  the  nuisance,  but  not  in  such  a  sense 
as  to  render  him  liable.  We  think  there  can  be  no  doubt  of  the  cor- 
rectness of  the  ruling  of  the  Court  below,  in  sustaining  the  demur- 
rer to  these  counts.  *  *  * 
Judgment  affirmed.^® 

29  L.  &  N.  Co.  V.  Lumber  Co.,  125  Ala.  237,  247,  28  South.  438,  50  L.  R.  A. 
G20  (1899)  semble;  Kiug  v.  Railway  Co.,  1  Pennewill  (Del.)  452,  41  Atl.  975 
(1898:  carrier);  City  v.  Selz  Co.,  202  111.  545,  548,  67  N.  E.  386  (1903);  Mar- 
quette Co.  V    Marcott,  41  Mich.  433,  2  N.  W.  795  (1879)  semble;    Grover  v. 


Ch.  3)  CASH  m 

KING  V.  WILMINGTON  &  N.  C.  E.  R.  CO. 

(Superior  Court  of  Delaware,  1898.     1  Pennewill,  452,  41  Atl.  975.) 

Lore,  C.  J.,  and  Spruance  and  Grubb,  JJ.,  sitting. 

Superior  Court,  New  Castle  County,  November  Term,  1898. 

Demurrer.  Action  on  the  case  (No.  80,  Sept.  T.  1898).  The  facts 
appear  in  the  opinion  of  the  Court. 

LorEj  C.  J.  The  plaintiff's  declaration  contains  four  counts  for 
injuries,  alleged  to  have  been  received  by  him,  by  having  been  thrown 
from  one  of  the  defendant's  electric  railroad  cars,  through  the  care- 
lessness and  negligence  of  the  defendant. 

The  defendant  demurs  specially  to  each  of  the  four  counts  of  the 
plaintiff's  declaration  and  relies  upon  the  following  causes  of  de- 
murrer : 

"1.  For  that  it  nowhere  appears  in  the  said  declaration  in  what  act 
or  omission  the  defendant's  negligence  consisted. 

"2.  For  that  it  nowhere  appears  in  the  said  declaration  that  the 
railroad  cars  or  appliances  of  the  said  defendant  were  improperly 
constructed,  or  that  the  same  were  out  of  repair,  or  that  the  same 
were  in  any  manner  defective  or  dangerous. 

"3.  For  that  it  nowhere  appears  in  the  said  declaration,  that  the 
said  defendant  had  failed  to  provide  competent  and  careful  servants 
and  agents,  or  in  what  respect  its  servants  or  agents  had  failed  to 
exercise  proper  care  and  caution  in  the  operation  of  the  cars  of  the 
defendant. 

"4.  For  that  it  nowhere  appears  in  the  said  declaration,  that  the 
cars  of  the  defendant  were  running  at  an  improper  or  unlawful  rate 
of  speed. 

"o.  For  that  it  nowhere  appears  in  said  declaration,  upon  what 
part  of  the  road  of  the  defendant  the  said  plaintiff  was  injured,  and 
the  said  defendant  is  uninformed  of  the  time  and  place  of  said  oc- 
currence. 

"6.  For  that  the  said  defendant  is  not  informed  by  said  declaration 
upon  what  specific  negligent  act  or  omission  the  plaintiff  relies  for 
his  right  of  recovery  in  this  cause." 

The  substance  of  the  demurrer  therefore  is,  that  the  plaintiff  has 
not  set  forth  in  his  declaration  the  facts  of  his  claim  with  sufficient 
certainty  to  apprise  the  defendant  of  what  is  intended  to  be  proved. 

The  rule  of  pleading  in  cases  of  this  character  is  quite  clear.  The 
plaintiff  must  set  forth  in  his  declaration  the  facts  of  his  claim,  with 

Railroad,  76  N.  J.  Law,  2.37,  G9  Atl.  1082  (1908 :  master  and  servant) ;  Bucci 
V.  Waterman,  25  R.  I.  125,  .54  Atl.  1059  (1903) ;  Bait.  R.  R.  v.  Whittington, 
80  Grat.  (Va.)  805.  810  (1878 :  wrongful  death) ;  Snyder  v.  Electrical  Co.,  43 
W.  Va.  661,  28  S.  E.  733,  39  L.  R.  A.  499,  64  Am.  St.  Rep.  922  (1897).  Accord. 
The  act  stated  must  be  one  which,  if  negligent,  would  be  a  breach  of  the 
duty  alleged.  Mathews  v.  Bensel,  51  N.  J.  Law,  30,  16  Atl.  195  (ISSS) ;  La- 
forrest  v.  O'Driscoll,  26  R.  I.  547,  553,  59  Atl.  923  (1905). 


112  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

such  certainty  as  reasonably  to  inform  the  defendant  what  is  pro- 
posed to  be  proved  in  the  case;  so  that  the  defendant  may  have  a 
fair  opportunity  to  meet  such  facts  in  preparing  his  defence. 

It  is  the  purpose  of  pleading  to  reasonably  and  fairly  disclose  the 
facts  of  the  case  and  not  to  conceal  them.  Pleading  should  not  be 
used  as  the  means  of  concealing  the  facts  by  vague  and  general  terms. 
Time,  place  and  circumstances,  so  far  as  relied  on  and  within  the 
knowledge  of  the  party,  must  be  specified ;  and  that,  too,  with  reasona- 
ble fullness  and  fairness.  Any  other  rule  would  make  pleading  the 
medium  of  concealing  the  facts  of  the  case,  except  so  far  as  might 
be  necessary  to  bring  it  within  the  least  possible  legal  certainty. 

Chitty  epitomizes  the  rule  in  this  definition :  "A  declaration  is 
the  specification  in  methodical  and  legal  form  of  the  circumstances 
which  constitute  the  plaintiff's  cause  of  action."  2  Chitty's  Pleading, 
240. 

It  is  not  sufficient  to  state  a  mere  conclusion  of  law. 

It  is  not  suf^cient  to  state  the  result  or  conclusion  of  fact,  arising 
from  circumstances  of  the  case  not  set  forth  in  the  declaration. 

While  some  Western  States  have  adopted  a  dififerent  rule,  yet  by 
the  best  considered  cases,  it  is  not  sufificient  merely  to  allege  generally 
the  negligence  and  carelessness  of  the  defendant,  without  giving  any 
particulars  of  such  negligence,  even  in  the  case  of  passengers. 

In  the  statement  of  facts  in  pleadings,  Chitty  announces  a  rule 
which  practically  solves  this  case.  "A  general  statement  of  facts, 
which  admits  of  almost  any  proof  to  sustain  it  is  objectionable."  2 
Chitty's   Pleading,   231. 

Applying  these  rules  to  the  declaration  in  this  case,  we  find  that 
the  second,   third  and   fourth  counts   are   sufificient. 

The  second  count  charges  the  defendant  with  "so. negligently  and 
carelessly  omitting  and  neglecting  to  use  proper  care  and  caution  in 
running  one  of  its  cars  wherein  the  said  plaintiff  was  then  and  there 
a  passenger  for  hire,  that  said  car  ran  from  the  rail  with  great  force 
and  violence,"  whereby  the  plaintiff  was  thrown  out  and  injured. 

The  third  charges  the  defendant  with  "negligently  and  carelessly 
running  two  cars,  upon  one  of  which  the  said  plaintiff  was  then  rid- 
ing as  a  passenger  for  hire,  upon  a  certain,  track,  which  was  then  and 
there  through  the  negligence  and  carelessness  of  the  said  defendant 
improper  and  unsafe,"  whereby  the  car  was  thrown  from  the  track 
and  the  plaintiff  thereby  thrown  to  the  ground  and  injured. 

The  fourth  count  charges  the  defendant  with  "so  negligently  and 
carelessly  running  a  certain  car  in  which  the  plaintiff  was  then  and 
there  a  passenger  for  hire  and  was  then  riding,  that  the  said  car  jump- 
ed from  the  track,"  thereby  causing  the  injury. 

While  the  facts  set  forth  in  these  three  counts  are  meagre,  yet 
they  are  sufficient  in  law,  inasmuch  as  they  specify  circumstances  re- 
lied on ;  such  as  the  car  ran  from  the  rail  from  the  negligent  running 
of  the  defendant;    the  car  was  thrown  from  the  track  by  reason  of 


Of.  3)  CASE  113 

an  improper  and  unsafe  track;  that  the  car  jumped  from  the  track, 
by  reason  of  the  defendant's  careless  running.  These  specifications 
direct  the  defendant  to  the  pecuhar  circumstances  which  are  alleged 
to  have  caused  the  injury. 

Applying  the  same  test,  the  first  count  in  the  declaration  is  mani- 
festly insufficient.  It  charges  the  defendant  with  "so  negligently 
and  carelessly  operating  a  certain  electric  car  which  it  was  then  and 
there  running  for  the  carriage  of  persons  for  hire,  that  thereby  the 
said  plaintiff,  who  was  then  and  there  a  passenger  on  said  car,  was, 
through  the  negligence  and  carelessness  of  the  said  defendant  as 
aforesaid,"  thrown  from  the  car  and  injured. 

This  averment  is  simply  the  bald  statement,  that  the  defendant  so 
negligently  and  carelessly  operated  a  car  that  the  plaintiff  was  thrown 
from  the  car  and  injured.  Negligently  operating  a  car,  is  a  very  gen- 
eral statement,  involving  a  multitude  of  possible  circumstances  of 
negligence,  with  not  one  single  fact  or  circumstance  stated;  which 
comes  within  Chitty's  rule  of  admitting  almost  any  proof  to  sustain 
it.  It  is  more  in  the  nature  of  a  statement  of  a  conclusion  of  fact, 
and  contains  none  of  the  elements  of  good  pleading.  It  gives  the 
defendant  no  specific  fact  to  meet  or  defend,  but  turns  him  loose 
among  a  multitude  of  possible  causes  of  negligence  coming  within 
the  term  negligently  operating  a  car. 

The  plaintiff'  justifies  in  part  that  the  allegation  of  negligence  is 
that  contained  in  the  form  given  in  2  Chitty,  650,  Examination  shows 
that  this  count  is  in  marked  contrast  with  the  specific  statement  of 
fact  contained  in  that  form. 

We  do  not  mean  to  say  that  the  plaintiff  is  always  bound  to  set 
forth  facts  or  circumstances,  the  knowledge  of  which  is  more  properly 
or  peculiarly  in  the  opposite  party,  or  to  detail  the  circumstances  mi- 
nutely; but  that  such  circumstances,  as  he  does  know  and  must  have 
contemplated  and  relied  on  when  he  framed  his  declaration,  and  are 
reasonably  necessary  for  the  defendant's  information,  should  be  speci- 
fied with  reasonable  certainty.  To  this  he  is  unquestionably  held  by 
all  the  rules  of  good  pleading. 

The  demurrer  therefore  to  the  first  count  is  sustained.  The  de- 
murrers to  the  second,  third  and  fourth  counts  are  overruled.^" 

30  Jacksonville  Ry.  v.  Garrison,  30  Fla.  557,  11  South.  929  (1892)  semble; 
Chicago  Ry.  v.  Harwood,  90  111.  425  (1878:  wrongful  death)  semble;  Great 
Western  Co.  v.  Hawkins,  18  Mich.  427  (1869 :  carrier)  ;  Van  Horn  v.  Central 
R.  R.,  38  N.  J.  Law,  133,  138  (1875 :  carrier)  ;  Ellis  v.  Waldron,  19  R.  I.  3G9,  33 
Atl.  809  (1896)  semble;  Bait.  R.  R.  v.  Whittington's  Adm'r,  30  Grat.  (Va.) 
805.  810  (1878 :  wrongful  death) ;  Birckhead  v.  Railway  Co.,  95  Va.  648,  29 
S.  E.  678  (1898);  Searle  v.  Railway  Co.,  32  W.  Va.  370.  373,  9  S.  E.  248 
(1889 :  carrier) ;  Snyder  v.  Co.,  43  W.  Va.  661,  28  S.  E.  733,  39  L.  R.  A.  499, 
64  Am.  St.  Rep.  922  (1897).  Accord.  Armstrong  v.  St.  Ry.  Co.,  123  Ala.  233, 
244,  26  South.  349  (1898);  Connecting  Ry.  v.  Railway  Co..  123  111.  594,  600, 
15  N.  E.  45  (1888).  Contra. 

In  New  Jersey  it  is  held  that  this  defect  is  one  of  form  only.  Race  v. 
Railroad  Co.,  62  N.  J.  Law,  536,  41  Atl.  710  (1898). 

WHIT.C.L.PL.— 8 


11.4:  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

JACKSON  V.  CASTLE. 

(Supreme  Judicial  Court  of  Maine,  1888.     80  Me.  119,  13  Atl.  49.) 

On  report  from  supreme  judicial  court,  Waldo  county.^^ 

Action  on  the  case  to  recover  damages  for  injury  to  property  sus- 
tained by  reason  of  defendant's  unlawful  acts.  The  declaration  is 
as  follows :  "In  a  plea  of  the  case  for  that  the  plaintiff,  to-wit,  on 
the  15th  day  of  December,  A.  D.  1884,  at  said  Belfast,  while  in  the 
exercise  of  his  vocation,  was  then  and  there  lawfully  in  and  upon  a 
certain  public  way  in  said  city  called  'Miller  street,'  with  his  two  horses 
and  sled,  and  that  the  said  defendant  and  others,  to  the  number  of 
seven  or  more,  were  then  and  there  sliding  and  coasting,  with  two 
or  more  sleds  connected  together,  upon  and  down  the  sidewalk  on 
said  street,  contrary  to  law,  and  then  and  there,  within  the  limits 
of  said  street,  made  a  loud  noise  by  outcries  and  hallooing,  contrary 
to  law,  and  that,  by  reason  of  said  sliding  and  loud  noise,  the  horses 
of  him,  the  said  plaintiff,  became  frightened,  and  ran  furiously  down 
said  street,  and  struck  against  a  tree  with  such  force  that  his  sled 
and  harnesses  were  broken,  and  one  of  said  horses  so  much  injured 
as  to  render  him  worthless,  and  that  it  was  necessary^  to  kill  him,  to 
the  damage  of  said  plaintiff,  as  he  saith,  the  sum  of  three  hundred 
dollars." 

Haskell^  J.  Does  the  plaintiff's  declaration  set  out  a  cause  of 
action?  It  charges  in  substance  that  the  plaintiff,  being  lawfully  in 
a  public  street  with  his  two-horse  team,  suft"ered  special  damage  in 
the  loss  of  a  horse  by  reason  of  both  horses  taking  fright  at  the  defend- 
ant's sliding  in  the  same  street  with  others  engaged  in  boisterous  out- 
cries incident  to  their  sport.  Sliding  in  a  street,  accompanied  with 
boisterous  conduct,  is  not  necessarily  unlawful.  Nor  is  it  necessarily 
a  public  nuisance.  The  averment  that  defendant's  acts  were  "contrary 
to  law,"  does  not  help  the  plaintiff's  case.  It  is  merely  a  conclusion 
that  he  draws  from  the  facts  stated.  If  the  facts  do  not  warrant  it, 
the  court  cannot  adopt  it.  Sliding  in  a  street,  accompanied  with  bois- 
terous conduct,  calculated  to  frighten  horses  lawfully  traveling  there- 
in, may  be  a  public  nuisance ;  but  there  .is  no  such  averment  in  the 
declaration.  Sliding  may  be  prohibited  in  streets  by  a  city  ordinance, 
and  a  violation  of  the  same  would  be  evidence  tending  to  show  negli- 
gence. If  the  plaintiff  would  recover,  he  must  show  negligence  or 
unlawful  conduct  to  be  the  proximate  cause  of  his  injury.  Plaintiff 
nonsuit.^^  , 

Peters,  C.  J.,  and  Walton,  Danforth,  Libbey,  and  Emery,  JJ., 
concurred. 

31  Under  an  agreement  that  if  the  declaration  should  be  held  insufficient 
the  plaintiff  should  be  nonsuited,  otherwise  the  case  to  stand  for  trial. 

3  2  Mobile  Co.  v.  Williams,  ,53  Ala.  595,  600  (1875);  Mandeville  v.  Cooken- 
derfer,  Fed.  Cas.  No.  9,009  (1827 :    D.  C.) ;   Hart  v.  Club,  157  111.  9,  14,  41  N. 


Ch.  3)  CASE  115 


SNYDER  V.  WHEELING  ELECTRICAL  CO. 

(Supreme  Court  of  Appeals  of  West  Virgiuia,  1S97.     43  W.  Va. 
661,  28  S.  E.  733,  39  L.  R.  A.  499,  64  Am.  St.  Rep.  922.) 

Error  to  circuit  court,  Ohio  county ;   Paull  and  Hervey,  Judges. 

Action  by  Florence   Snyder  against  the  Wheeling  Electrical  Com 
pany.     Judgment   for  plaintiff.     Defendant  brings  error.     Reversed. 

Brannon,  J.^^  In  an  action  on  the  case,  Florence  Snyder,  admin- 
istratrix of  Andrew  C.  Snyder,  recovered  a  judgment  against  the 
Wheeling  Electrical  Company  for  $1,000,  and  the  company  obtained 
this  writ  of  error. 

One  error  alleged  is  the  action  of  the  circuit  court  in  overruling  a 
"  demurrer  to  the  declaration.  The  specification  of  its  defect  is  that 
it  ought  to,  but  does  not^  set  forth  the  duty  "arid  aver  The  neglect ; 
and  citation  is  made  of  the  language  in  the  opinion  in  Clarke  v.  Rail- 
road Co.,  39  W.  Va.  732,  20  S.  E.  696,  that  a  declaration  in  "tort 
must  have  requisite  definiteness  to  inform  the  defendant  of  the  nature 
of  the  cause  of  action,  and  the  particular  act  or  omission  constituting 
the  tort,"  and  reference  is  made  to  Poling  v.  Railroad  Co.,  38  W. 
Va.  645,  18  S.  E.  782,  24  L.  R.  A.  215,  holding  that  a  declaration 
for  negligence  "is  good  if  it  contain  the  substantial  elements  of  a 
cause  of  action,  the  duty  violated,  the  breach  thereof  properly  averred, 
with  such  matters  as  are  necessary  to  render  the  cause  of  action  in- 
telligible, so  that  judgment  according  to  law  and  the  very  right  of  the 
case  can  be  given."  I  think  these  statements  are  good  law,  Hogg, 
PL  &  Forms,  §  140,  says  that  it  is  settled  as  a  general  rule  that  it 
is  not  necessary  to  state  the  particular  acts  which  constitute  negli- 
gence. This  is  so,  but  we  must  take  care  not  to  misapply  this  state- 
ment. The  West  Virginia  cases  cited  to  sustain  the  rule  are  cases 
against  railroads  for  killing  stock.  If  a  declaration  allege  that  a  rail- 
road killed  stock  by  negligently  running  a  train  over  it,  as  in  those 
cases,  that  would  be  sufficient,  without  more  details  of  the  circum- 
stances of  running  over  it;  but  I  take  it  that  it  would  not  be  enough 
simply  to  say  that  the  company  negligently  killed  a  horse.  You  must 
aver  the  duty,  and  aver  the  existence  or^ presence  of  negligence  in_ 
'-it5-'"pCTfurnTinTce7"and' specify  the  act  working  damage,  but  need  not 
'^^-deTatr'atrtlie"  evidential  facts  of  neglige^nce^  You  must  tell  the  de- 
'-fendant,  even  under  this  general  rule,  that  he  negligently  did  a  spe- 
cific act  doing  harm.  In  other  words,  you  may  say  that  the  defendant, 
negligently  did  or  did  not  do  so  and  so,  without  detail  as  to  the  nier^_ 

E.  620,  29  L.  R.  A.  492.  48  Am.  St.  Rep.  298  (lS9a) ;  Mackey  v.  Millins?  Co., 
210  111.  115,  71  N.  E.  448  (1904 :  master  and  servant) ;  Flint  Co.  v.  8tark,  38 
Mich.  714,  717  (1878:  carrier)  semble ;  Cox  v.  Gas  Co.,  17  R.  I.  199,  21  Atl. 
344  (1891 :  master  and  servant).  Accord.  Taylor  v.  Felsing,  164  111.  331,  45 
N.  E.  161  (1896 :  master  and  servant) ;  111.  Steel  Co.  v.  Ostrowski,  194  III 
376,  385,  62  N.  E.  822  (1902 :  master  and  servant).  Contra. 
83  ra;t  of  tbe  opinion  omitted. 


116 


PLEADINGS   IN   TORT   ACTIONS 


(Part  1 


negligence,  but  you  must  state  the  acts  that  are  the  basis  of  liability. 

'"XT  the  neglTgence~cannot  be  otherwise  charged,  they  rr.ust  be  giverr. 
As  said  in  Berns  v.  Coal  Co.,  27  W.  Va.  285,  55  Am.  Rep.  304,  the 
object_g£_a_d£claratipnJs  to  give  the  facts  constituting  the  causae  pf 

_action^_soJ^l2eyjtnayJ)e jjnderstoo^^  the  party  who  is  to  answer  them, 
and  by  the  jury  and  court,  who  are  to  give  verdict  and  judgment 

"o^TKeliTj  ImdTliough,  tn  an~actioir"for  negligence.  It  is  not  necessary 

^~to  state  with  particularity  the  acts  of  omission  or  commission,  yet, 
lest  too  loose  a  practice  shall  grow  under  this  rule,  it  may  be  well 
to  state  the  warning  given  in  Railroad  Co.  v.  Whittington,  30  Grat. 
(Va.)  810,  that  "this  rule  does  not  justify  a  general  and  indefinite 
mode  of  declaring,  admitting  of  almost  any  proof."  In  that  case  it 
was  held  not  enough  to  state  that  the  railroad  company  was  working 
its  road  with  cars  and  conducted  itself  so  negligently  in  its  business 
that  it  inflicted  severe  bodily  injuries,  by  reason  of  which  the  person 
died,  without  stating  where  the  deceased  was,  or  how  injured.  To 
avoid  misunderstanding,  it  is  important  to  add  that  the  declaration 
need  not  state  the  particular  facts  that  are  not  primary  or  main  facts, 
but  only  are  evidence  of  primary  facts.  When  the  necessary  primary 
facts  are  given,  then  all  other  facts  merely  incidental  that  go  to  prove 
the  primary  facts  may  be  proven  without  specification  in  the  declara- 
tion. Davis  v.  Guarnieri,  45  Ohio  St.  470,  15  N.  E.  350,  4  Am.  St. 
Rep.  548;  Ware  v.  Gay,  11  Pick.  (Mass.)  106;  ]\IcCauley  v.  David- 
son, 10  Minn.  418,  422  (Gil.  335). 

The  declaration  in  this  case  states  that  the  defendant  operated  an 
electric  plant  for  the  manufacture  and  sale  of  electricity,  and  had 
its  wires  over  the  streets  of  the  city  of  Wheeling  for  the  conveyance 
of  electricity  in  dangerous  currents,  and  that  it  was  the  duty  of  the 
defendant  to  exercise  all  possible  care  in  putting  up  and  operating 
its  plant  and  wires,  and  constantly  inspecting  the  wires  and  other 
appurtenances  and  appliances,  and  in  seeing  that  they  were  strong, 
suitable,  and  safe,  and  that  the  wires  and  appurtenances  were  at  all 
times  safely  secured,  and  to  immediately  attend  to  and  repair  broken 
or  defective  wires  and  appliances,  and,  when  any  of  the  wires  were 
down  upon  the  street,  to  cut  off  from  them  the  current  of  electricity, 
that  the  lives  and  limbs  of  persons  on  the  streets  might  not  be  en- 
dangered ;  yet  the  defendant  carelessly  and  negligently  suffered  one 
of  its  wires  at  the  corner  of  IMarket  and  Sixteenth  streets  to  be  so 
insufficiently  secured  that  it  came  down,  and  lay  on  the  street,  and 
Snyder  stepped  upon  it,  received  th^  electric  current,  fell  prostrated 
by  it,  and  continued  to  lie  there,  and  receive  the  current  into  his  body, 
and  therefrom  died.  This  declaration  surely  says  that  it  was  the 
duty  of  the  defendant  to  safely  secure  the  wires,  and  that,  from  be- 
ing insufficiently  secured,  they  came  down  into  the  street,  and  there 
wrought  the  injury.  This  one  duty,  breach,  and  injury  save  the 
declaration  from  demurrer.  I  think,  too,  the  declaration  may,  by 
implication,  be  construed  to  say,  what  it  should  have  positively  aver- 


Ch.3)  CASE  117 

red,  that  the  defendant  failed  to  cut  off  the  current  from  the  wire 
when  down,  as  it  avers  that  the  current  entered  Snyder's  body,  and 
he  fell,  and  continued  to  receive  it,  which  could  not  be  so  had  the 
current  been  cut  off.     "A  declaration_will  be  treated  as_allegiiig_±ij^ 
implication  every  fact  which  can^Jje  implied  from  its  _averments  by__ 

TTj^    mnqt    llhpr^Tjntt^rnPTiK" Hog-g,    PI.    &    FormS,    §    140.       ThoSC 

\Vere  the  only  two  omissions  of  duty  specified.  None-ather.-  £ouldJa£_ 
proven,  for,  even  where  there  may  be  allowable^ .a  ^general  charge 
of  negligence,  yet,  if  the  declaration  does^giye  certain  specifications 
'of  negtigence^ as  sources  of  the  injury,  others  cannot  be  proven.^* 
Hawker  v.  RaiTroad^roViS'W.  Va.  629,  36  Am.  Rep.  825.  There- 
fore evidence  was  not  admissible  to  prove  want  of  or  bad  insulation 
of  wires  at  the  place  of  accident  and  elsewhere,  and  that  wires  came 
in  contact  with  wet  posts,  and  that  nobody  was  kept  on  duty  to  repair 
broken  wires ;  that  on  a  certain  other  occasion,  when  a  wire  was  out 
of  fix,  some  one  telephoned  from  the  plant  that  there  was  no  one 
to  fix  the  wires ;  that  no  instruments  were  kept  to  discover  breaks ; 
and  that  at  other  places  the  wires  were  bare.  It  might  seem  that 
some  of  this  evidence  might  come  in  under  the  allegation  of  insecure 
fastening,  but  it  relates  more  to  the  condition  of  the  wires,  not  to 
their  fastening,  and  there  is  no  allegation  of  defective  wires.  *  *  * 
Reversed. ^^ 

8  4  Armstrong  v.  Co.,  123  Ala.  233,  246,  26  South.  849  (1S99:  carrier)  sem- 
ble ;    Chicago  R.  R.  v.  Rayburn,  153  III.  290,  38  N.  E.  558  (1894).  Accord. 

3  5  Birmingham  Co.  v.  Baker,  132,  Ala.  507,  514,  31  South.  618  (1902);  Ander- 
son V.  Hopkins,  91  Fed.  77,  33  C.  C.  A.  346  (1899 :  111.  law) ;  L.  &  N.  R.  R. 
V.  Jones,  45  Fla.  407,  34  South.  246  (1903)  ;  City  v.  Selz  Co.,  202  111.  545, 
67  N.  E.  386  (1903);  Chiles  v.  Drake,  2  Mete.  (Ky.)  146,  74  Am.  Dec.  406 
(1859:  wrongful  death);  Ware  v.  Gay,  11  Pick.  (Mass.)  106,  110  (1831:  car- 
rier) ;  Cristanelli  v.  Mining  Co.,  154  Mich.  423.  117  N.  W.  910  (1908:  master 
and  servant) ;  Breese  v.  Trenton  Co.,  52  N.  J.  Law,  250,  19  Atl.  204  (1890 : 
carrier) ;  Birckhead  v.  Railway  Co.,  95  Va.  648,  29  S.  E.  678  (1898).  Accord. 
Laporte  v.  Cook,  20  R.  I.  261,  38  Atl.  700  (1897);  So.  Ry.  v.  Hansb rough's 
Adm'x,  105  Va.  527.  54  S.  E.  17  (1900).  Contra.  For  further  citations  see  14 
PI.  &  Pr.  333 ;   29  Cyc.  570. 

In  any  event  the  declaration  need  allege  only  such  evidence  of  negligence 
as  the  plaintiff  would  likely  know.  Chicago  Co.  v.  Jennings,  157  111.  274, 
280.  41  N.  E.  629  (1895) ;  Parker  v.  Steamboat  Co.,  17  R.  I.  376,  22  Atl.  284, 
23  Atl.  102,  14  L.  R.  A.  414.  33  Am.  St.  Rep.  869  (1891). 

If  facts  showing  negligence  are  alleged,  an  express  allegation  of  negli- 
gence is  unnecessary.  Parnaby  v.  Company,  11  A.  &  E.  223.  242  (1839) ;  Con- 
sumer's Co.  V.  Pry  or,  44  Fla.  354,  379.  32  South.  797  (1902)  ;  111.  Co.  v.  Os- 
trowski.  194  111.  376,  384,  62  N.  E.  822  (1902). 

If  facts  are  alleged  bringing  the  case  within  the  doctrine  of  res  ipsa  lo- 
quitur, an  allegation  of  negligence  is  unnecessary.  Ellis  v.  Waldron,  19  R.  I. 
309,  371.  33  Atl.  869  (1896).  Compare  Greinke  v.  Railway,  234  111.  564,  85 
N.  E.  327  (1908). 


118  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

McGANAHAN  v.  EAST  ST.  LOUIS  &  C.  R.  CO. 

(Supreme  Court  of  Illinois,  1874.     72  111.  557.) 

Appeal  from  the  Circuit  Court  of  St.  Clair  county;  the  Hon.  Wil- 
liam H.  Snyder,  Judge,  presiding. 

Mr.  Justice  Craig  delivered  the  opinion  of  the  Court: 

This  was  an  action  on  the  case,  brought  to  recover  damages  for 
an  injury  received  by  the  plaintiff  in  coupling  cars  of  the  defendant. 
A  demurrer  was  filed  to  the  declaration,  which  was  sustained.  The 
plaintiff  brings  the  record  here  by  appeal,  and  assigns  for  error  the 
decision  of  the  court  in  sustaining  the  demurrer. 

The  declaration  contains  but  one  count,  in  which  it  is  averred  that, 
on  the  17th  of  March,  1873,  the  defendant  employed  the  plaintiff  as 
a  brakeman,  and  that  it  was  his  duty  to  couple  together  the  cars  of 
defendant ;  that  while  he  was  so  engaged,  he  received  only  ordinary 
wages,  and  did  not  assume  any  special  risks,  but  only  such  as  were 
ordinarily  incident  to  such  employment ;  that  it  was  the  duty  of  the 
defendant  to  furnish  suitable  cars  and  appliances,  so  as  to  enable 
him  to  perform  his  duty  with  safety ;  that  the  defendant  did  not 
furnish  safe  and  suitable  cars,  but  negligently  furnished  a  car  for 
the  transportation  of  certain  railroad  iron,  which  was  unsafe ;  that 
the  car  was  much  shorter  than  the  iron,  so  that  the  iron  projected 
over  the  ends  of  the  car,  thereby  .rendering  it  unsafe  and  dangerous 
to  plaintiff  v.hile  in  the  performance  of  his  duty,  all  of  which  the 
defendant  well  knew ;  that  while  plaintiff  was  coupling  two  of  de- 
fendant's cars,  one  of  which  was  a  box  car,  on  its  track,  and  the  other 
was  a  rear  car  of  a  train  attached  to  an  engine  of  defendant,  which 
engine  and  train  were  being  backed  up  by  defendant  to  be  coupled 
to  the  box  car,  he  necessarily  had  to  go  between  the  cars  to  couple 
them ;  that  while  his  attention  was  wholly  absorbed  in  watching  the 
signals  from  the  train,  which  was  backing  up,  and  while  he  was 
between  the  cars  for  the  purpose  of  making  the  coupling,  the  cars 
came  violently  together,  and  while  he  was  using  all  due  care,  and 
without  fault  or  negligence  on  his  part,  without  any  knowledge  or 
notice  whatever  that  the  iron  bars  were  projecting  over  the  end  of 
the  car  at  the  time,  etc.,  but  by  reason  of  the  negligence  of  the  de- 
fendant, he  had  his  right  hand  caught  between  said  cars,  and  thereby 
mangled  and  hurt,  etc. 

This  declaration  can  not  be  held  sufficient.  The  only  act  of  negli- 
gence on  the  part  of  the  defendant,  of  which  the  plaintiff  seems,  by 
his  declaration,  to  complain,  is,  the  car  upon  which  the  iron  was 
loaded  was  too  short,  and  the  iron  projected  over  the  end  of  the  car. 

While  this  may  be  conceded  to  be  an  act  of  negligence  on  the  part 
of  the  defendant,  yet,  unless  this  negligence  of  the  defendant  con- 
\;ributed,  in  some  degree,  to  the  injury  received  by  plaintiff,  then  it 
certainly  could  be  no  ground  of  recovery. 


Ch.  3)  CASE  119 

The  declaration  does  not  aver  that  the  plaintiff  was  injured  by  the 
iron  projecting  over  the  end  of  the  car.  The  substance  of  the  aver- 
ment is,  that  the  cars  came  violently  together,  and  his  hand  was 
caught  between  the  cars  and  injured  while  he  was  in  the  act  of  coup- 
ling the  cars.  For  aught  that  we  are  able  to  perceive,  this  would 
as  readily  occur  if  no  iron  had  been  projecting  over  the  end  of  the  car. 

The  plaintiff  entirely  fails,  by  his  declaration,  to  show  that  the  in- 
jury received  was  occasioned  by  the  negligence  he  attributes  to  the 
defendant.     This  objection  to  the  declaration  we  regard  as  fatal. 

The  judgment  of  the  circuit  court  will,  therefore,  be  affirmed. 

Judgment  affirmed.^* 


CITY  OF  ORLANDO  v.  HEARD. 

(Supreme  Court  of  Florida,  1S92.     29  Fla.  5S1,  11  South.  182.) 

Mabry,  J.^''  The  appellee  sued  appellant  in  the  circuit  court  of 
the  seventh  judicial  circuit  for  Orange  county  for  personal  injuries 
received  by  reason  of  an  alleged  unsafe  sidewalk.  The  action  is  tres- 
pass on  the  case.  A  trial  of  the  case  resulted  in  a  verdict  and  judg- 
ment for  appellee,  and  appellant  has  appealed  to  this  court.  In  view 
of  the  conclusion  reached  it  is  unnecessary  to  give  the  proceedings 
in  the  case  further  than  the  action  of  the  court  on  the  demurrer  to 
the  declaration.  The  essential  allegations  of  the  declaration  are  that 
the  defendant,  the  city  of  Orlando,  "on  the  3d  day  of  January,  A.  D. 
1887,  was  possessed  and  had 'control  of  certain  public  streets  called 
'Orange  Avenue'  and  'Church  Street,'  in  the  said  city,  in  the  county 
aforesaid,  and  ought  to  have  kept  the  same  in  good  and  safe  repair 
and  condition,  yet  the  defendant,  not  regarding  its  duty  in  that  behalf, 

3  6  City  V.  Gilmer,  33  Ala.  116.  131,  70  Am.  Dec.  562  (185S) ;  Reaves  v.  .Alills, 
154  Ala.  565,  45  South.  702  (190S :  master  and  servant) ;  German-American 
Co.  V.  Brock,  55  Fla.  577.  4G  South.  740  (1908)  ;  Strain  v.  Strain,  14  111.  368 
(1853);  Eilenberger  v.  Nelson,  64  111.  App.  277  (1806);  Paige  Works  v.  Ilut- 
ter,  107  111.  App.  673  (1903 :  master  and  servant) ;  State  v.  Fox,  79  Md.  514, 
528,  29  Atl.  601.  24  L.  R.  A.  079,  47  Am.  St.  Rep.  424  (1894) ;  Cristaiielli  v. 
Mining  Co..  154  Mich.  423.  117  X.  W.  910  (1908 :  master  and  servant)  semble ; 
Minnuci  v.  Railroad  Co.,  68  N.  J.  Law,  432,  53  Atl.  229  (1902:  master  and 
servant)  semble.  Accord. 

But  a  general  allegation,  such  as  "by  reason  of,"  "caused,"  "in  consequence 
of,"  is  sufficient.  American  Co.  v.  Feunell.  158  Ala.  484,  48  South.  97  (190S) ; 
German-American  Co.  v.  Brock,  55  Fla.  577,  46  South.  740  (1908) ;  Cristanelli 
V.  Mining  Co.,  154  Mich.  423.  117  N.  W.  910  (1908 :  master  and  servant)  ; 
Dingee  v.  Unrue's  Adm'x,  98  Va.  247.  35  S.  E.  794  (1900:  master  and  serv- 
ant). Accord,  \yilson  v.  Railroad,  146  Ala.  285.  289,  40  South.  941,  8  L.  R.  A. 
(N.  S.)  987  (1900:    master  and  servant).  Contra. 

If  the  facts  alleged  show  causation  an  express  allegation  is  unnecessary. 
Birmingham  Co.  v.  Hinton.  141  Ala.  606,  37  South.  635  (1904) ;  Seal  v.  Ce- 
ment Co.,  108  Va.  806,  62  S.  E.  795  (1908:    master  and  servant).  Accord. 

m  Greinke  v.  Railway,  234  111.  564,  85  N.  E.  327  (1908 :  carrier),  it  appears 
to  be  held  that,  if  on  the  facts  alleged  the  doctrine  of  res  ipsa  loquitur  ai>- 
plies,  an  allegation  of  causation  is  unnecessary. 

87  Part  of  the  opinion  omitted. 


120  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

while  it  was  so  possessed,  and  had  the  control  of  the  said  sidewalks, 
to  wit,  on  the  day  aforesaid,  there  wrongfully  and  negligently  suf- 
fered the  same  to  be  and  remain  in  bad  and  unsafe  repair  and  con- 
dition, and  divers  of  the  planks  wherewith  the  said  sidewalk  was 
laid  to  be  and  remain  broken  and  unfastened,  by  means  whereof  the 
plaintiff,  who  was  then  and  there  passing  along  and  upon  the  said 
sidewalk,  then  and  there  necessarily  and  unavoidably  tripped  and 
stumbled  upon  and  against  one  of  said  broken  and  unfastened  planks 
of  said  sidewalk,  and  was  thereby  thrown  and  fell  to  and  upon  the 
said  sidewalk,  and  the  ground  there,  and  thereby  the  left  leg  of  the 
plaintiff  was  then  and  there  dislocated  and  broken,  and  he  became 
sick,  lame,"  etc. ;  and  concluding  with  an  allegation  as  to  loss  of  time, 
suffering  of  pain,  and  the  expending  of  divers  sums  of  money  to  be 
healed,  amounting  in  the  aggregate  of  damages  sustained  to  the  sum 
of  $15,000. 

A  demurrer  to  this  declaration  that  it  is  bad  in  substance  was  over- 
ruled by  the  court. 

Three  objections  are  urged  here  against  the  sufficiency  of  this  dec- 
laration: First,  that  it  does  not  specifically  set  forth  the  place  where 
the  cause  of  action  arose;  second,  that  it  does  not  allege  that  plain- 
tiff was  exercising  due  and  ordinary  care  when  the  alleged  injury  was 
received;  and,  third,  that  there  is  no  allegation  in  the  declaration 
that  the  defendant  corporation  had  any  knowledge  of  the  defective 
sidewalk,  or  that  a  sufficient  time  elapsed  after  the  defect  occurred, 
and  before  the  injury,  for  it  to  repair  the  same.  The  first  objection 
does  not  in  our  judgment  present  any  sufficient  reason  why  the  de- 
murrer should  have  been  sustained.     *     *     * 

Neither  do  we  think  that  the  second  objection  urged  here  against 
the  declaration  is  good.  Some  decisions  hold  that  in  actions  against 
municipal  corporations  for  injuries  received  by  reason  of  defective 
streets  or  sidewalks  it  is  necessary  for  the  plaintiff  to  aver  in  his 
declaration  that  he  was  at  the  time  exercising  reasonable  care,  and 
the  injury  happened  without  his  fault. ^*  The  decisions  in  Indiana 
are  clear  and  pronounced  in  holding  this  view.  In  section  113,  1 
Shear.  &  R.  Neg.,  it  is  stated  that  the  Indiana  courts  alone  require 
the  plaintiff  expressly  to  aver  in  his  pleading  the  fact  of  his  due. care, 
but  early  decisions  in  Illinois  and  Massachusetts  seem  to  sanction  this 
rule.  Railroad  Co.  v.  Hazzard,  26  111.  373 ;  Raymond  v.  Lowell,  6 
Cush.  524,  53  Am.  Dec.  57.  Where  the  burden  is  upon  the  plaintiff 
in  the  first  instance  to  prove  the  want  of  negligence  on  his  part, 

88  Chicago  Ry.  v.  Cooney,  196  111.  466,  63  N.  E.  1029  (1902)  semble;  State 
V.  Railroad,  77  Md.  489,  26  Atl.  865  (1893:  wrongful  death);  Kilberg  v. 
Berry,  166  Mass.  488,  44  N.  E.  603  (1896:  master  aud  servant)  semble;  To- 
rongo  V-  Salliotte,  99  Mich.  41,  57  N.  W.  1042  (1894 :  master  and  servant) ; 
Milliken  v.  City,  136  Mich.  2.50,  99  N.  W.  7  (1904) ;  Falk  v.  Railroad  Co.,  56 
N.  J.  Law,  380,  29  Atl.  157  (1894:  carrier)  semble;  Di  Marcho  v.  Foundry, 
18  R.  I.  514,  27  Atl.  328,  28  Atl.  661  (1893)  semble ;  Benedict  v.  Society,  74 
Vt.  91,  103,  52  Atl.  110  (1901)  semble.  Accord. 


1 


Ch.  3)  CASE  121 

contributing  to  the  injury,  it  would  seem  that  some  reason  might 
exist  for  the  rule  requiring  an  allegation  of  due  care  on  his  part,  al- 
though Shearman  &  Redfield,  in  the  section,  supra,  say  in  such  cases 
the  gen£ral_rule_isthat  the  plaintiff  need  not  expressly  aver  in  his 
pleadingthe  absence  oF  conTribntory -fault:  An^irT^tlTe^note  to  the 
section  referred  to  it  is  staled  no  sucF  averment  is  required  in  states 
where  contributory  negligence  is  a  defense.  There  is  a  decided  conflict 
of  authority  on  the  question  of  the  burden  of  proof  as  to  contribu- 
tory negligence.  The  decisions  cited  to  sections  156  and  157,  Beach, 
Contrib.  Neg.,  and  on  pages  1102,  1103,  1  Rice,  Ev.,  clearly  show  this. 
In  this  state  this  question  has  been  passed  upon,  _and  the  rule  an- 
nounceH^Imf^OTitributoFy  negligence  on  the^  part  of  the  plaintiff  is_a 
matter  of  defense^  whicTi  the  defendant  must  set  up  and  maintain  by 
"proof^  unless  the  plaintiff's  own  evidence  in  support  of  his  case  shows 
Tliat  a  presumption  of  contributory  negligence  is  plainly  inferabje 
-'therefrom.  RliTroad"  Co.  v.  ^Yniestra,  21  Fla.  700.  Under  this  rule 
"there^wouTd  ^em  to  be  no  good  reason  for  requiring  the  plaintiff  to 
negative  in  his  declaration  a  defense  which  the  defendant  must  set 
up  and  maintain  by  proof  in  the  absence  of  such  a  showing  by  the 
plaintiff.  This  rule  is  the  one  best  sustained  by  authority,  and  we 
think  is  correct.  In  Lee  v.  Gaslight  Co.,  98  N.  Y.  115,  it  was  decided 
that  it  is  not  essential  that  the  complaint  in  an  action  for  negligence 
shall  allege  absence  of  contributory  negligence  on  the  part  of  the 
plaintiff.  Such  an  allegation  is  substantially  involved  in  the  aver- 
ment that  the  injury  complained  of  was  occasioned  by  defendant's 
negligence.^''  The  same  view  was  maintained  in  Hoyt  v.  City  of 
Hudson,  41  Wis.  105,  22  Am.  Rep.  714.  See,  also,  Hackford  v. 
Railroad  Co.,  6  Lans.  (N.  Y.)  381;  Smoot  v.  Mayor,  etc.,  24  Ala. 
112;  Robinson  v.  Railroad  Co.,  48  Cal.  409;  Shear.  &  R.  Neg.  § 
109.     *     *     * 

Ordered  accordingly.'*" 

8  9  Gov't  R.  R.  V.  Hanlon,  53  Ala.  70  (1875) ;  May  v.  Princeton,  11  Mete. 
(Mass.)  442  (1846);  Hickman  v.  Railroad,  66  Miss.  154.  5  South.  225  (ISSS : 
wrongful  death) ;   Brothers'  Adm'r  v.  Co.,  71  Vt.  48,  42  Atl.  9S0  (1S9S).  Accord. 

4  0  Watling  v.  Oastler,  L.  R.  6  Ex.  73,  78  (1871) ;  Mobile  Co.  v.  Crenshaw, 
65  Ala.  566  (1880);  Birmiucham  Co.  v.  Hilton,  141  Ala.  606,  37  South.  635 
(1904);  Atchison  v.  Wills,  21  App.  Cas.  (D.  C.)  548,  562  (1903)  semble;  Cox 
V.  Brackett,  41  111.  222  (1866) ;  Chicago  Rv.  v.  Coss,  73  111.  394  (1874)  semble; 
Valley  v.  Railroad,  68  N.  H.  546,  38  Atl.  383  (1806) ;  Warshawsky  v.  Traction 
Co.,  68  N.  J.  Law,  241,  52  Atl.  296  (1902) ;  McKee  v.  McCardell.  21  R.  I.  363, 
43  Atl.  847  (1899) ;  Sheff  v.  City,  16  W.  Va.  307,  313  (1880) ;  Winchester  v. 
Carroll,  99  Va.  727,  738,  40  S.  E.  37  (1901)  semble.  Accord. 

The  omission  to  allege  freedom  from  contributory  negligence  is  cured  by 
verdict.  Chicago  Co.  v.  Cooney,  196  111.  466.  63  N.  E.  1029  (1902) ;  Bene- 
dict V.  Society,  74  Vt.  91,  103,  52  Atl.  110  (1901). 

Due  care  on  plaintiff's  part  may  be  alleged  in  general  terms.  111.  Central 
V.  Weiland,  179  111.  609,  613,  54  N.  E.  300  (1899) ;  Falk  v.  Railroad,  56  N.  J. 
Law,  380,  384,  29  Atl.  157  (1894)  semble.  Accord.  Torongo  v.  Salliotte,  99 
Mich.  41,  57  N.  W.  1042  (1894).  Contra. 

If  facts  showing  due  care  are  alleged,  an  express  allegation  is  unnecessa- 
ry.    Falk  V.  Railroad,  56  N.  J.  Law,  380,  384,  29  Atl.  157  (1894). 

An  allegation  that  defendant  had  the  last  chance  to  avoid  the  accident 


122  PLEADINGS   IN   TORT  ACTIONS  (Part    1 


(J^^^ 


LIBBY,  McNEILL  &  LIBBY  v.  SCHERMAN. 

(Supreme  Court  of  Illinois,  1893.     146  111.  540,  34  N.  E.  801, 
37  Am.  St.   Rep.  191.) 

Appeal  from  appellate  court,  first  district. 

Action  on  the  case  brought  by  Michael  Schcrman  against  Libby, 
McNeill  &  Libby.  Plaintiff  obtained  judgment,  which  was  affirmed 
by  the  appellate  court.     Defendant  appeals.     Affirmed. 

The  other  facts  fully  appear  in  the  following  statement  by  BaiIvEy, 

This  was  an  action  on  the  case,  brought  by  Michael  Scherman 
against  Libby,  McNeill  &  Libby,  a  corporation,  to  recover  damages 
for  a  personal  injury.  The  declaration  originally  consisted  of  two 
counts,  but  the  first  count  was  dismis'^ed,  and  the  trial  was  had  upon 
the  second  count  alone.  That  count  alleges  that  at  the  time  of  the 
injury  complained  of  the  defendant  was  possessed  of  and  operated 
a  packing  house;  that  the  plaintiff  was  in  the  defendant's  employ 
as  a  laborer,  and  as  such  was  working  for  the  defeiidant,  with  all 
due  care  and  caution  for  his  safety,  at  and  near  a  certain  pile  of 
pork  barrels,  which  were  piled  in  rows,  one  upon  another,  to  a  great 
height,  to  wit,  12  feet;  "that  it  then  and  there  became  and  was 
the  duty  of  the  defendant  to  keep  and  maintain  said  piles  of  barrels 
in  such  condition  that  they  would  not  spread,  tilt,  or  fall  upon 
plaintiff  while  working  for  the  defendant  at  and  near  the  same  and 
not  to  do  anything  with  or  to  said  piles  of  barrels  which  would  cause 
them  to  spread,  tilt,  or  fall  upon  the  plaintiff  while  working  at  or 
near  them,  in  the  business  of  the  defendant ;  yet  the  defendant,  in 
utter  disregard  of  its  duty  in  this  behalf,  then  and  there  carelessly 
and  negligently  kept  and  maintained  said  rows  of  barrels,  defectively 
piled  in  rows  one  upon  another,  and,  while  so  defectively  piled,  drove 
in  the  head  of  one  of  said  barrels,  and  took  therefrom  the  contents 
thereof,  to  wit,  certain  brine  and  pork,  so  that  the  said  barrel  was  then 
and  there  greatly  weakened  and  rendered  unable  to  support  the  weight 
of  the  barrels,  piled  above  the  same,  and  by  reason  of  the  care- 
lessness and  negligence  of  defendant,  in  manner  as  aforesaid,  and 
while  plaintiff  was  in  the  exercise  of  all  due  care  for  his  own  safety, 
the  said  barrels  spread,  tilted,  gave  way,  and  fell  upon  and  against 
the  plaintiff,"  thereby  breaking  the  plaintiff's  leg,  and  otherwise  in- 
juring him.  To  this  count  the  defendant  pleaded  not  guilty,  and 
at  the  trial  the  jury  found  the  defendant  guilty,  and  assessed  the 
plaintift''s  damages  at  $7,500.     From  this  sum  the  plaintiff  remitted 

cures  the  failure  to  allege  due  care.     Burke  v.  Railroad  Co.,  108  111.  App. 
565.  570  (1902). 

See,  generally,  29  Cyc.  575;    5  PI.  &  Pr.  1. 


Ch.  3)  CASE  123 

$2,500,  and  the  court,  after  denying  the  defendant's  motion  for 
A  new  trial,  and  also  its  motion  in  arrest  of  judgment,  gave  judgment 
in  favor  of  the  plaintiff  for  $5,000  and  costs.  That  judgment,  on 
appeal  to  the  appellate  court,  was  affirmed,  and  the  present  appeal 
is  from  the  judgment  of  affirmance.     *     *     * 

Bailey,  C.  J.*^  The  first  proposition  submitted  by  counsel  for 
the  defendant  is  that  the  declaration  does  not  state  a  cause  of  action, 
and  that  its  motion  in  arrest  of  judgment  should  have  been  sustained 
on  that  ground.  The  contention  is  that  the  defendant,  being  a  cor- 
poration, could  act  only  by  its  agents  and  servants,  and  that  as  the 
maxim  respondeat  superior  has  no  application  to  injuries  resulting 
from  the  negligent  acts  of  the  fellow  servants  of  the  plaintiff,  the 
.declaration  must  show  affirmatively,  by  express  averments,  that  the 
injury  complained  of  was  caused  by  the  negligent  acts  of  agents 
or  servants  of  the  defendant  who  were  not  fellow  servants  of  the 
plaintiff.  This,  in  our  opinion,  was  not  necessary.  The  allegations 
of  the  declaration,  so  far  as  this  point  are  concerned,  are  in  the  form 
which  has  been  universally  recognized  by  the  rules  of  common-law 
pleading  as  sufficient  to  charge  a  corporation  with  negligence.  They 
are  that  the  defendant — that  is,  the  corporation  itself — negligently 
did  the  acts  complained  of;  allegations  which  exclude,  ex  vi  termini, 
the  theory  that  they  were  performed  by  parties  for  whose  conduct 
the  defendant  was  not  responsible.  Counsel  refer,  in  support  of  their 
contention,  to  the  recent  case  of  Steel  Co.  v.  Shields,  134  111.  209,  25 
N.  E.  569.  Upon  examination  of  that  case  it  will  be  found  that 
the  negligent  acts  complained  of  were  there  affirmatively  alleged 
to  have  been  done  by  the  defendant's  servants,  without  showing  that 
they  were  done  by  the  class  of  servants  whose  acts  would  charge  the 
principal  with  responsibility.  It  was  held  that  such  allegations  were 
not  sufficient  to  show  a  right  to  recover  against  the  principal.*^  The 
distinction  between  that  case  and  this  is  clear.  It  should  also  be 
noticed  that  in  that  case  the  ordinary  presumptions  which  obtain 
after  verdict,  and  by  operation  of  which  a  defective  statement  of  a 
good  cause  of  action  is  said  to  be  cured,  were  excluded  by  an  in- 
struction given  by  the  court  to  the  jury.  In  this  case  no  such  instruc- 
tion was  given;    so  that,  even  if  the  declaration  is  one  which  might 


41  Statement  of  facts  abridged  and  part  of  opinion  omitted. 

4  2  L.  &  N.  Ry.  V.  Bouldin,  110  Ala.  185,  199,  20  South.  .325  (1895);  Schil- 
linger  Co.  v.  Smith.  225  111.  74,  81.  SO  N.  E.  65  (1907)  semble ;  Flynn  v.  City, 
1.34  Mass.  351  (1883) ;  Laporte  v.  Cook,  20  R.  I.  201,  38  Atl.  700  (1897).  Accord. 
Mott  V.  Railway.  102  111.  App.  412  (1902)  semble.  Contra. 

If  the  facts  alleged  show  that  plaintiff  was  not  a  fellow  servant,  no  ex- 
press allegation  to  that  effect  is  necessary.  Chicago  Co.  v.  Swan,  176  111. 
424,  52  N.  E.  910  (1898). 

If  the  declaration  affirmatively  shows  that  the  plaintiff  and  the  servant 
who  dia  the  injurious  act  were  fellow  servants,  it  must  overcome  that  de- 
fense in  some  way.     Zier  v.  Railway,  98  Md.  35,  50  Atl.  385  (1903). 


124  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

have  been  held  to  be  defective  on  demurrer,  the  defect  is  one  which 
is  cured  by  verdict.     *     *     * 

We  find  no  material  error  in  the  record,  and  the  judgment  of  the 
appellate  court  will  accordingly  be  affirmed.** 


tfw>^  * 


DALTON  V.  RHODE  ISLAND  CO. 
(Supreme  Court  of  Rhode  Island,  1904.     25  R.  I.  574,  57  Atl.  383.) 

Trespass  on  the  case  for  negligence  by  George  L.  Dalton  against 
the  Rhode  Island  Company.  On  demurrer  to  declaration.  Demur- 
rer sustained. 

Argued  before  Stiness,  C.  J.,  and  Douglas  and  Blodgett,  JJ. 

Stiness,  C.  J.  This  case  comes  before  us  on  defendant's  demur- 
rer to  the  declaration  upon  the  ground  that  it  does  not  appear  that 
the  defective  condition  of  the  pump  complained  of  was  unknown  to 
the  plaintiff,  or  that,  with  reasonable  care  and  diligence,  said  plaintiff 
could  not  have  known  of  such  defective  condition.  The  question 
is  whether  a  declaration  for  negligence  should  state  that  the  defect 
on  which  a  cause  of  action  is  based  was  unknown  to, the  plaintiff. 
The  object  of  a  declaration  is  to  state  the  case  against  the  defendant, 
and  the  office  of  a  demurrer  is  to  require  a  sufficient  statement  when 
the  declaration  is  deficient.  The  reason  for  this  is  that  a  defendant 
jliould  not  be  put  to  the  trouble  and  expense  of  a  trial,  possibly 
Dy  an  irresponsible  plaintiff,  unless  a  case  is  stated  upon  which  the 
plaintiff,  prima  facie,  at  least,  has  a  right  to  recover.  In  negligence 
cases  a  plaintiff's  right  to  recover  is  limited  by  his  contributory  negli- 
gence and  by  his  assumed  risks.  It  is  now  common  practice  to  neg- 
ative the  limitation  of  contributory  negligence  by  the  allegation  of 
due  care  on  the  part  of  the  plaintiff.  In  regard  to  assumed  risks, 
there  is  a  difference  of  opinion  whether  this  should  be  regarded  as 
a  matter  of  defense,  or  a  fact  to  be  negatived  in  the  declaration. 
See  5  Ency.  PL  Sz.  Pr.  p.  4.  In  this  state  it  has  been  considered,  in 
cases  between  master  and  servant,  that,  since  a  servant  entering  or 
continuing  in  service  under  a  known  risk  cannot  recover  unless 
some  sufficient  excuse  is  shown,  he  does  not  state  a  case  unless  he 

4S  Jacksonville  Ry.  v.  Galvin,  29  Fla.  636,  11  South.  231,  16  L.  R.  A.  337 
11892) ;  Fifield  v.  Railroad,  42  N.  H.  225  (1860)  semble.  Accord.  Fortin  v. 
Manville  Co.  (C.  C.)  12S  Fed.  642  (1904 :  Rhode  Island  law) ;  Di  Marcho  v. 
Foundry,  IS  R.  I.  514,  27  Atl.  328,  28  Atl.  661  (1893).  Contra. 

If  the  declaration  charges  the  corporation  with  mere  omission,  the  plain- 
tiff need  not  show  that  he  was  not  a  fellow  servant.  Fifield  v.  Railroad,  42 
X.  H.  225  (1800) ;   Laporte  v.  Cook,  20  R.  I.  261,  38  AU.  700  (1897). 

A  fortiori,  if  the  suit  is  not  against  a  corporation,  the  application  of  the 
fellow  servant  rule  need  not  be  negatived.  Cribben  v.  Callaghan,  156  111.  549, 
41  N.  E.  178  (1S9.")). 

See,  generally,  20  Cyc.  1394 ;   13  PI.  &  Pr.  906. 


Ch.  3)  CASE  125 

shows  that  he  had  not  assumed  such  risk,  whereby  he  might  be  pre- 
cluded from  recovery.  If  want  of  knowledge  need  not  be  alleged 
by  the  plaintiff,  it  need  not  be  proved  by  him.  The  result  would  be, 
therefore,  in  holding  that  it  need  not  be  alleged,  that  a  plaintiff  could 
put  in  his  case  without  reference  to  his  knowledge  of  the  alleged 
defect,  and  the  defendant,  upon  showing  such  knowledge,  not  excused, 
would  be  entitled  to  a  verdict.  This,  however,  occasions  unnecessary 
hardship  to  a  defendant,  when  the  case  might  have  been  determined 
on  the  pleadings.  It  is  no  hard  rule  for  a  plaintiff  to  require  the 
averment,  for,  if  he  cannot  state  that  he  was  ignorant  of  the  de- 
fect, it  must  be  because  he  knew  it;  and,  if  he  knew  it,  and  was 
without  excuse  for  continuing  to  work  in  the  face  of  it,  he  is  with- 
out right  to  recover.  Such  a  question  should  be  settled,  as  far  as 
possible,  on  the  pleadings.  With  due  respect  to  courts  holding  other- 
wise, we  are  of  opinion  that  the  allegation  of  want  of  knowledge 
is  essential  to  the  statement  of  a  case,  as  much  as  the  averment 
of  due  care  by  the  plaintiff,  and  is  more  consonant  with  proper  plead- 
ing and  the  convenience  of  parties  than  to  leave  it  to  be  set  up  in 
defense.  If  a  plaintiff  must  negative  contributory  negligence,  why 
should  he  not  also  negative  an  assumed  risk  which  his  silence  ap- 
parently admits? 

In  Kelley  v.  Silver  Spring,  12  R.  I.  112,  34  Am.  Rep.  615,  the  doc- 
trine of  assumed  risks  was  fully  settled,  and  has  since  been  followed 
without  question.  Di  Marcho  v.  Builders,  18  R.  I.  514,  27  Atl.  328, 
28  Atl.  661,  held  that  the  plaintiff  must  state  the  relation  of  the  de- 
fendant and  the  agent  causing  the  injury,  so  that  it  may  appear 
whether  he  was  a  fellow  servant  or  not.  Flynn  v.  International  Co., 
24  R.  I.  291,  52  Atl.  1089,  held  that  a  declaration  failing  to  state 
that  the  plaintiff  did  not  know  of  the  defect  complained  of  as  negli- 
gence was  demurrable.  In  that  case  an  omission  of  the  word  "not" 
occurred  in  transcribing  the  opinion,  which  should  have  been  in- 
serted in  the  sixth  line.  The  opinion  would  then  have  read,  "If  the 
plaintiff  knew  of  the  defect,  he  was  working  under  a  known  risk ; 
if  he  did  not  know  of  it,  the  court  could  not  say  that  the  defect 
was  not  obvious,  and  so  charge  him  with  notice,  as  claimed  in  the 
demurrer."  The  demurrer  was  therefore  sustained,  because  the  dec- 
laration left  open  one  of  two  possibilities — either  a  known  or  an 
obvious 'risk,  without  negation  or  excuse.  It  is  now  urged  that  Lee 
v.  Reliance  Mills,  21  R.  I.  322,  43  Atl.  536,  is  inconsistent  with  Flynn 
V.  International  Co.  There  is  no  conflict.  As  pointed  out  by  Mr. 
Justice  Tillinghast  in  Baumler  v.  Narragansett,  23  R.  I.  430,  50  Atl. 
841,  the  declaration  in  the  Lee  Case  set  up  that  while  the  deceasea 
was  "necessarily  absorbed  in  the  work  of  operating  the  machine,  so 
that  he  was  obliged  to  give  his  entire  attention  thereto,  and  to  work 
with  rapidity  and  promptness,"  he  was  injured.  It  impliedly  admitted 
knowledge,  and  set  up  an  excuse.  The  demurrer  was  on  the  ground 
that    he   might    have   been    fully    informed    as    to    his    surroundings. 


126  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

Suppose  he  had  been.  That  could  not  affect  the  case  stated  in  the 
declaration,  of  necessary  absorption.  Knowledge  could  be  set  up 
in  defense  upon  the  question  whether  there  was  due  care  under  the 
circumstances,  but  it  could  not  make  the  case  stated  demurrable. 
That  is  quite  different  from  Flynn  v.  International  Co.  and  the  case 
at  bar,  which  cases  allege  defects,  simply,  and  the  demurrer  is  upon 
the  point  of  negativing  knowledge  of  the  defect. 

Until  recent  years,  negligence  cases  in  this  state  were  rare ;  but, 
of  those  in  our  reports  which  state  the  pleadings,  the  custom  has 
been  to  allege  either  want  of  knowledge  of  the  defendant's  negligence 
or  an  excuse.  See  Smith  v.  Tripp,  13  R.  I.  152 ;  Cox  v.  Providence 
Gas  Co.,  17  R.  I.  199,  21  Atl.  344;  Parker  v.  Providence  Co.,  17  R.  I. 
376,  22  Atl.  284,  23  Atl.  102,  14  L.  R.  A.  414,  33  Am.  St.  Rep.  869; 
Wilson  V.  N.  Y.,  N.  H.  &  H.  R.  Co.,  18  R.  I.  491,  29  Atl.  258 ;  Disano 
v.  New  England  Co.,  20  R.  I.  452,  40  Atl.  7;  Jones  v.  New  Am. 
Co.,  21  R.  I.  125,  42  Atl.  509;  Pintorehi  v.  Horton,  22  R.  I.  374, 
48  Atl.  142;  Baumler  v.  Narragansett,  23  R.  I.  430,  50  Atl.  841; 
King  V.  Railroad  Co.,  23  R.  I.  583,  51  Atl.  301,  70  L.  R.  A.  924 ; 
Baumler  v.  Narragansett,  23  R.  I.  611,  51  Atl.  203;  Milhench  v. 
Jenckes,  24  R.  I.  131,  52  Atl.  687;  Cox  v.  American  Co.,  24  R.  I. 
503,  53  Atl.  871,  60  L.  R.  A.  629;  Russell  v.  Riverside,  24  R.  I. 
591,  54  Atl.  375;    Paoline  v.  Bishop,  25  R.  I.  298,  55  Atl.  752. 

As  a  general  rule,  therefore,  the  defendant  should  negative  the 
assumption  of  a  known  risk.  The  cases  cited  will  furnish  illustra- 
tions of  excuse  for  continuing  work  by  necessary  absorption,  by  lack 
of  appreciation  of  danger,  from  youth,  inexperience,  emergency,  etc., 
by  promise  to  repair  a  defect,  and  by  inability  to  know  the  exact 
cause  of  the  injury,  but  stating  enough  to  raise  a  presumption  of 
negligence. 

In  the  case  at  bar  it  is  alleged  that  the  plaintiff  was  putting  a  ring 
packer  on  the  plunger  of  a  pump,  in  the  course  of  his  duty ;  that 
the  valve  was  unsafe  and  out  of  repair,  permitting  steam  to  escape, 
so  that  the  plunger  was  liable  to  start  up  at  any  time ;  and  that  it 
did  start  while  he  was  at  work  upon  it,  whereby  his  hand  was  in- 
jured. So  far  as  appears  from  the  declaration,  this  condition  may 
have  been  known  to  the  plaintiff,  and  the  risk  of  working  on  it  as- 
sumed by  him.  It  does  not  state  that  it  was  not  known,  or  state 
any  excuse  for  so  working  on  it  if  it  was  known.  The  natural  infer- 
ence from  what  is  stated  is  that  it  was  known,  and  so  an  assumed  risk. 

The  demurrer  to  the  declaration  is  sustained.^* 

44  Hayden  v.  Mfg.  Co.,  29  Conn.  548,  5G1  (ISGl);  Fortin  v.  Manville  Co.,  128 
Fed.  642  (1904 :  Rhode  Island  law) ;  Chicago  Ry.  v.  Bell,  111  111.  App.  280, 
289  (1903)  semble;  Bnzzell  v.  Mfg.  Co.,  48  Me.  113,  122,  77  Am.  Dec.  212 
(1861) ;  Cristanelli  v.  Mining  Co.,  154  Mich.  423,  428,  117  N.  W.  910  (1908) 
semble ;  Grover  v.  Railroad.  76  N.  J.  Law,  237,  69  Atl.  1082  (1908) ;  N.  & 
W.  Ry.  V.  Jackson,  85  Va.  489,  497,  8  S.  E.  370  (1888).  Accord.  So.  Car  Co. 
V.  Jennings,  137  Ala.  247,  250,  34  South.  1002  (1902)  ;  Chicago  R.  R.  v.  Hines, 
132  111.  161,  168,  23  N.  E.  1021,  22  Am.  St.  Rep.  515  (1890) ;    City  v.  Kostka, 


Ch.  3)  CASE  127 

DECLARATION  IN  CASE  FOR  UBEIJ. 

(2  Chitty,  Pleading  [13th  Am.  Ed.]  pp.  *596,  *620.) 

In  the  Common  Pleas. 

next  after in Term,  Will.  4. 

(to  wit)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 


trespass  on  the  case,  and  thereupon  the  said  A.  B.  by  E.  F.  his  at- 
torney, complains,  for  that  whereas  the  said  plaintiff,  now  is  a  good, 
true,  honest,  just,  and  faithful  subject  of  this  realm,  and  as  such  has 
always  behaved  and  conducted  himself,  and  until  the  committing  of 
the  several  grievances  by  the  said  defendant  as  hereinafter  mentioned, 
was  always  reputed,  esteemed,  and  accepted  by  and  amongst  all  his 
neighbors,  and  other  good  and  worthy  subjects  of  this  realm  to  whom 
he  was  in  any  wise  known,  to  be  a  person  of  good  name,  fame,  and 
credit,  to  wit,  at,  &c.  (venue). — And  whereas  also,  the  said  plaintiff 
hath  not  ever  been  guilty,  or  until  the  time  of  the  committing  of  the 
said  several  grievances  by  the  said  defendant  as  hereinafter  mentioned, 
been  suspected  to  have  been  guilty  of  perjury  or  any  other  such  crime. 
— By  means  of  which  said  premises,  the  said  plaintiff,  before  the  com- 
mitting of  the  said  several  grievances  by  the  said  defendant  as  here- 
inafter mentioned,  had  deservedly  obtained  the  good  opinion  and 
credit  of  all  his  neighbors,  and  other  good  and  worthy  subjects  of  this 
realm,  to  whom  he  was  in  any  wise  known,  to  wit,  at,  &c.  (venue) 
aforesaid. — And  whereas  also,  before  the  committing  of  the  several 
grievances  by  the  said  defendant  as  hereinafter  mentioned,  a  certain 
action  had  been  depending  in  the  said  court  of  our  lord  the  now  king, 
before  the  king  himself,  at  Westminster,  in  the  county  of  Middlesex, 
wherein  one  G.  H.  was  the  plaintiff",  and  one  J.  K.  was  the  defendant, 
and  which  said  action  had  been  then  lately  tried  at  the  assizes  in  and 

190  111.  130.  134,  60  N.  E.  72  (1901)  semble;  Lee  v.  Mills  Co.,  21  R.  I.  322.  43 
Atl.  536  (1899).  Contra. 

It  seems  to  be  often  assumed  that  negativing  knowledge  of  the  defect  is 
negativing  assumption  of  the  risk.  Walsh  v.  Railway,  34  Fla.  1,  11,  1.5  South. 
686  (1894) ;  Grover  v.  Railroad.  76  N.  J.  Law,  237,  69  Atl.  1082  (1908) ;  Manzi 
V.  Wire  Co.,  29  R.  I.  460.  72  Atl.  394  (1909) ;  N.  &  W.  Rv.  v.  Jackson.  85  Va. 
489,  497,  8  S.  E.  370  (188S).  But  in  Gould  v.  Railway,  141  111.  App.  344  (1908), 
it  was  held  that  negativing  knowledge  of  risk  was  insufficient  as  it  did  not 
appear  but  that  he  had  easy  means  of  knowing.  In  other  cases  negativing 
knowledge  of  the  risk  is  assumed  to  be  the  same  as  negativing  contributory 
negligence,  and  is  required  or  not  according  to  the  rule  of  the  jurisdiction  on 
that  question.  Mobile  R.  R.  v.  George.  94  Ala.  199,  215,  10  South.  145  (1891) ; 
James  v.  Mining  Co.,  55  Mich.  335,  338,  21  N.  W.  361  (1884) ;  Richmond  Co. 
v.  Bailey,  92  Va.  554,  559.  24  S.  E.  232  (1896) ;  Hoffman  v.  Dickinson,  31  W. 
Va.  142,  146,  6  S.  E.  53  (1888). 

It  has  been  held  that  an  allegation  that  the  plaintiff  was  without  fault 
sufficiently  alleges  that  he  did  not  assume  the  risk.  City  v.  Kostka,  190  111. 
130,  60  N.  E.  72  (1901) ;  Cristanelli  v.  Mining  Co.,  154  Mich.  423,  428,  117  N. 
W.  910  (1908). 

Obviously  negativing  contributory  negligence  does  not  show  nou-assumption 
of  the  risk.     Brainard  v.  Van  Dyke,  71  Vt.  359  (1899). 

See,  generally,  26  Cyc.  1397. 


128  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

for  the  county  of ,  and  on  such  trial  the  said  plaintiff  had  been 

and  was  examined  on  oath,  and  had  given  his  evidence  as  a  witness 
for  and  on  the  part  and  behalf  of  the  said  G.  H.  to  wit,  at,  &c.  (venue) 
aforesaid.  Yet  the  said  defendant,  well  knowing  the  premises,  but 
greatly  envying  the  happy  state  and  condition  of  the  said  plaintiff,  and 
contriving,  and  wickedly  and  maliciously  intending  to  injure  the  said 
plaintiff  in  his  good  name,  fame,  and  credit,  and  to  bring  him  into  pub- 
lic scandal,  infamy,  and  disgrace  with  and  amongst  all  his  neighbors, 
and  other  good  and  worthy  subjects  of  this  kingdom,  and  to  cause  it 
to  be  suspected  and  believed  by  those  neighbors  and  subjects,  that  he 
the  said  plaintiff  had  been  and  was  guilty  of  perjury,  and  to  subject 
him  to  the  pains  and  penalties  by  the  laws  of  this  kingdom  made  and 
provided  against,  and  inflicted  upon  persons  guilty  thereof,  and  to  vex, 
harass,  oppress,  impoverish,  and  wholly  ruin  the  said  plaintiff  hereto- 
fore, to  wit,  on,  &c.  at,  &c.  (venue)  aforesaid,  falsely,  wickedly,  and 
maliciously  did  compose  and  publish,  and  cause  and  procure  to  be  pub- 
lished, of  and  concerning  the  said  plaintiff,  and  of  and  concerning  the 
said  action  which  had  been  so  depending  as  aforesaid,  and  of  and  con- 
cerning the  evidence  by  him  the  said  plaintiff  given  on  the  said  trial, 
as  such  witness  as  aforesaid,  a  certain  false,  scandalous,  malicious,  and 
defamatory  libel  containing,  amongst  other  things  the,  false,  scanda- 
lous, malicious,  defamatory,  and  libellous  matter  following,  of  and  con- 
cerning the  said  plaintiff,  and  of  and  concerning  the  said  action,  and 
of  and  concerning  the  evidence  by  him  the  said  plaintiff  given  on 
the  said  trial,  as  such  witness  as  aforesaid,  that  is  to  say  he  (mean- 
-  ing  the  said  plaintiff)  was  foresworn  on  the  trial  (meaning  the  said 
trial),  and  thereby  then  and  there  meaning  that  the  said  plaintiff,  in 
giving  his  evidence  as  such  witness,  on  the  said  trial  as  aforesaid, 
had  committed  wilful  and  corrupt  perjury.  And  the  said  plaintiff 
further  saith,  that  the  said  defendant  further  contriving  and  intend- 
ing as  aforesaid,  heretofore,  to  wit,  on  the  day  and  year  aforesaid, 
at,  &c.  (venue)  aforesaid,  falsely,  wickedly,  and  maliciously,  did 
publish  a  certain  other  false,  scandalous,  malicious,  and  defamatory 
libel,  of  and  concerning  the  said  plaintiff,  and  of  and  concerning  the 
said-action,  which  had  bees-^o^depending  as  aforesaid,  ^rfd  of  and_coilj 
■fcerning  the  evidence  by  him ,  the  said  plainti^  given^on^  theTsaid  IriaX 
as  strd"r'w1tnfes''as  aforesaid,  containing,  amongst  other  things,  the 
false,  scandalous,  malicious,  defamatory,  and  libellous  matter  follow- 
ing, of  and  concerning  the  said  plaintiff,  and  of  and  concerning  the 
said  action,  and  of  and  concerning  the  evidence  given  by  him  the  said 
plaintiff  on  the  said  trial,  as  such  witness  as  aforesaid,  that  is  to  say, 
(vary  the  statement  of  the  words  and  inuendoes,  as  may  be  advisable, 
under  the  particular  circumstances  of  each  case.) — And  the  said  plain- 
tiff further  saith,  that  the  said  defendant  further  contriving  and  in- 
tending as  aforesaid,  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, at,  &c.  (venue)  aforesaid,  falsely,  wickedly,  maliciously,  wrong- 
fully, and  unjustly,  did  publish,  and  cause  and  procure  to  be  published, 


I 


I 


e^Ch.  3V;j,  CASE  129 

a  certain  other  false,  scandalous,  malicious,  and  defamatory  libel,  of 
and  concerning-  the  said  plaintiff,  as  follows,  that  is  to  say,  he  (mean- 
ing the  said  plaintiff)  is  perjured.  By  means  of  the  committing  of 
which  said  several  grievances  by  the  said  defendant  as  aforesaid,  the 
said  plaintiff  hath  been  and  is  greatly  injured  in  his  said  good  name, 
fame,  and  credit,  and  brought  into  public  scandal,  infamy,  and  disgrace, 
with  and  amongst  all  his  neighbors,  and  other  good  and  worthy  sub- 
jects of  this  realm,  insomuch  that  divers  of  those  neighbors  and  sub- 
jects, to  whom  the  innocence  and  integrity  of  the  said  plaintiff  in  the 
premises  were  unknown,  have,  on  account  of  the  committing  of  the 
said  grievances  by  the  said  defendant  as  aforesaid,  from  thence  hith- 
erto suspected  and  believed,  and  still  do  suspect  and  believe  the  said 
plaintiff  to  have  been,  and  to  be  a  person  guilty  of  perjury  and  have, 
by  reason  of  the  committing  of  the  said  grievances  by  the  said  defend- 
ant as  aforesaid,  from  thence  hitherto  wholly  refused,  and  still  do  re- 
fuse to  have  any  transaction,  acquaintance,  or  discourse  with  the  said 
plaintiff,  as  they  were  before  used,  and  accustomed  to  have,  and  other- 
wise would  have  had.  And  also  by  reason  thereof  one  M.  N.,  who 
before,  and  at  the  time  of  the  committing  of  the  said  grievance,  was 
about  to  retain  and  employ,  and  would  otherwise  have  retained  and 
employed  the  said  plaintiff  as  his  servant,  for  certain  wages  and  re- 
ward, to  be  therefore  paid  to  the  said  plaintiff  afterwards,  to  wit,  on 
the  day  and  year  aforesaid,  at,  &c.  (venue)  aforesaid,  wholly  refused 
to  retain  and  employ  the  said  plaintiff  in  the  service  and  employ  of  the 
said  M.  N.  and  the  said  plaintiff  hath  from  thence  hitherto  remained 
and  continued,  and  still  is  wholly  out  of  employ ;  and  the  said  plain- 
tiff hath  been  and  is,  by  means  of  the  premises,  otherwise  greatly  in- 
jured, to  wit,  at,  &c.  (venue)  aforesaid.  Wherefore  the  said  plaintiff 
saith  that  he  is  injured,  and  hath  sustained  damage  to  the  amount  of 
£ .,  and  therefore  he  brings  his  suit,  &c. 


DECLARATION  IN  CASE  FOR  SLANDER. 

(2  Chitty,  Pleading  [13th  Am.  Ed.]  pp.  *596,  *641h.) 

In  the  Common  Pleas. 

next  after in Term, Will.  4. 


(to  wit.)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 

trespass  on  the  case,  and  thereupon  the  said  A.  B.  by  E.  F.  his  at- 
torney, complains,  for  that  whereas  the  said  plaintiff  now  is  a  good, 
true,  honest,  just,  and  faithful  subject  of  this  realm,  and  as  such  hath 
always  behaved  and  conducted  himself,  and  until  the  committing  of 
the  several  grievances  by  the  said  defendant  as  hereinafter  mentioned, 
was  always  reputed,  and  esteemed,  and  accepted,  by  and  amongst  all 
his  neighbors,  and  other  good  and  worthy  subjects  of  this  realm,  to 
WniT.O.L.PL.— 9 


130  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

whom  he  was  in  any  wise  known,  to  be  a  person  of  good  name,  fame, 
and  credit,  to  wit,  at,  &c.  (venue).  And  whereas  also  the  said  plain- 
tiff hath  not  ever  been  guilty,  or,  until  the  time  of  the  committing  of 
the  said  several  grievances  by  the  said  defendant  as  hereinafter  men- 
tioned, been  suspected  to  have  been  guilty,  of  the  offences  and  mis- 
conduct as  hereinafter  stated  to  have  been  charged  upon  and  imputed 
to  the  said  plaintiff  by  the  said  defendant.  By  means  of  which  said 
premises  the  said  plaintiff,  before  the  committing  of  the  said  griev- 
ances by  the  said  defendant  as  hereinafter  mentioned,  had  deservedly 
obtained  the  good  opinion  and  credit  of  all  his  neighbors,  and  other 
good  and  worthy  subjects  of  this  realm,  to  whom  he  was  in  any  wise 
known,  to  wit,  at,  &c.  (venue)  aforesaid.  Yet  the  said  defendant,  well 
knowing  the  premises,  but  greatly  envying  the  happy  state  and  condi- 
tion of  the  said  plaintiff,  and  contriving  and  wickedly  and  maliciously 
intending  to  injure  the  said  plaintiff,  and  to  bring  him  into  public  scan- 
dal, infamy  and  disgrace,  with  and  amongst  all  his  neighbors  and  other 
good  and  worthy  subjects  of  this  kingdom,  and  to  cause  it  to  be  sus- 
pected and  believed  by  those  neighbors  and  subjects,  that  the  said 
plaintiff  had  been  and  was  guilty  of  the  offences  and  misconduct  here- 
inafter stated  to  have  been  charged  upon  and  imputed  to  him  by  the 
said  defendant,  and  to  vex,  harass,  oppress,  impoverish,  and  wholly 
ruin  the  said  plaintiff,  heretofore,  to  wit,  on,  &c.  (the  day  of  speaking 
the  words  or  about  it)  at,  &c.  (venue)  aforesaid,  in  a  certain  discourse 
which  he  the  said  defendant  then  and  there  had  with  the  said  plaintiff, 
of  and  concerning  him  the  said  plaintiff,  in  the  presence  and  hearing 
of  divers  good  and  worthy  subjects  of  our  lord  the  king,  then  and 
there,  in  the  presence  and  hearing  of  the  said  last-mentioned  subjects, 
falsely  and  maliciously  spoke  and  published,  of  and  concerning  the 
said  plaintiff,  the  false,  scandalous,  malicious,  and  defamatory  words 
following,  that  is  to  say,  "he,"  (meaning  the  said  plaintiff)  "is  a  rogue." 
By  means  of  the  committing  of  which  said  several  grievances  by  the 
said  defendant  as  aforesaid,  the  said  plaintiff  hath  been  and  is  greatly 
injured  in  his  said  good  name,  fame,  and  credit,  and  brought  into  pub- 
lic scandal,  infamy,  and  disgrace,  with  and  amongst  all  his  neighbors, 
and  other  good  and  worthy  subjects  of  this  realm,  insomuch  that  divers 
of  those  neighbors  and  subjects,  to  whom  the  innocence  and  integrity  of 
the  said  plaintiff"  in  the  premises  were  unknown,  have,  on  account  of 
the  committing  of  the  said  grievances  by  the  said  defendant  as  afore- 
said, from  thence  hitherto  suspected  and  believed,  and  still  do  suspect 
and  believe  the  said  plaintiff"  to  have  been  and  to  be  a  person  guilty 
of  the  offences  and  misconduct  so  as  aforesaid  charged  upon  and  im- 
puted to  him  by  the  said  defendant,  and  have,  by  reason  of  the  com- 
mitting of  the  said  grievances  by  the  said  defendant  as  aforesaid,  from 
thence  hitherto  wholly  refused,  and  still  do  refuse,  to  have  any  trans- 
action, acquaintance,  or  discourse  with  the  said  plaintiff,  as  they  were 
before  used  and  accustomed  to  have  and  otherwise  would  have  had. 
And  also  by  means  of  the  said  premises  the  said  plaintiff  hath  been 


Ch.  3)  CASE  131 

and  is  greatly  injured  in  his  credit  and  reputation,  and  brought  into 
public  scandal,  infamy,  and  disgrace,  with  and  amongst  all  his  neigh- 
bors, friends  and  acquaintance,  insomuch  as  divers  of  those  friends 
and  neighbors,  and  especially  G.  H.,  J.  K.,  M.  N.,  &c.  (the  persons 
hereinbefore  in  that  behalf  named,)  have  wholly  refused  to  permit  any 
intercourse  or  society  with  him,  or  to  receive  and  admit  him  into  their, 
respective  houses  or  company,  or  to  find  or  provide  for  him,  meat, 
drink,  or  any  other  benefit  and  advantages  in  any  manner  whatsoever, 
as  they  before  that  time  had  done,  and  otherwise  would  have  continued 
to  have  done,  whereby  the  said  plaintiff  hath  lost  all  those  valuable  ben- 
efits and  advantages,  being  to  him  theretofore  of  great  value,  to  wit,  of 
the  value  of  £ .  and  hath  been  and  is  greatly  reduced  and  preju- 
diced in  his  fortunes  and  pecuniary  circumstances,  and  obliged  to  in- 
cur a  much  greater  expense  in  his  necessary  living  and  supporting  him- 
self, to  a  large  amount,  to  wit,  to  the  annual  amount  of  £ .  than 

he  heretofore  had  done,  and  otherwise  would  have  continued  to  do,  and 
hath  been  and  is  greatly  impoverished,  and  all  his  friends  have  wholly 
withdrawn  their  friendship  and  acquaintance,  to  wit,  at,  &c.  (venue) 
aforesaid.     Wherefore  the  said  plaintifif  saith  that  he  is  injured,  and 

hath  sustained  damage  to  the  amount  of  £ .,  and  therefore  he 

brings  his  suit,  &c. 


JONES  V.  STEVENS. 

(Court  of  Exchequer,  1822.     11  Price,  235.) 

To  an  action  for  libel  the  defendant  pleaded  the  general  issue  and 
some  bad  special  pleas.  At  the  trial  the  defendant  wished  to  introduce 
evidence  of  the  general  bad  reputation  of  the  plaintiff.  The  Court  held 
it  inadmissible  on  any  ground. 

Wood,  Baron,*^  thus  meets  one  of  the  arguments  for  its  admissi- 
bility :  *  *  *  Mr.  Abraham  was  still  bolder,  and  asserted  that  such 
evidence  might  be  given,  not  only  on  the  general  issue,  but  also  under 
the  special  pleas,  because  the  plaintiff  had  stated  in  his  declaration  the 
usual  averment,  that  he  was  a  person  of  good  name,  fame,  and  credit, 
and  that  he  was  therefore  bound  to  prove  it.  This  is  new  doctrine  to 
me.  I  have  ever  understood,  that  general  good  character  is  always 
presumed  in  law ;  unless,  by  evidence  of  particular  acts,  fairly  and  spe- 
cifically put  in  issue,  that  presumption  is  negatived.  Some  cases  have 
been  mentioned,  wherein  it  should  seem  that  such  evidence  has  been 
received  at  Nisi  Prius.  I  will  not  attempt  to  distinguish  the  present 
case  from  those.  I  strongly  protest,  however,  against  any  such  mis- 
chievous doctrine  altogether:  and  deny  that  it  has  any  legal  founda- 
tion. It  cannot  be  supported  on  any  principle  of  law.  I  say,  distinctly^ 
that  it  is  not  warranted  by  the  law  of  the  land:    and  whatever  cases 

46  Parts  of  this  case  are  omitted. 


Vd2  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

may  be  cited  to  support  such  doctrine,  I  cannot  assent  to  them.  When 
I  am  told  by  the  House  of  Lords  (who,  I  presume,  would  take  and  act 
upon  the  opinion  of  the  judges,)  that  such  is  the  law,  I  will  then  (as  I 
must)  submit  to  consider  it  to  be  the  law;  but  certainly  not  till 
then.  *  *  * 
Rule  discharged.*" 


KENYON  V.  CAMERON. 

(Supreme  Court  of  Rhode  Island,  1890.     17  R.  I.  122,  20  Atl.  233.) 

Exceptions  from  court  of  common  pleas,  Washington  County. 

DuRFEE,  C.  J.*'^  This  is  case  for  slander.  The  declaration  con- 
tains several  counts.  The  first  count  purports  to  set  forth  the  very 
words  used  by  the  defendant  in  slandering  the  plaintiff.  The  other 
counts,  except  the  last,  allege  the  making  of  defamatory  charges  by 
the  defendant  against  the  plaintiff,  without  purporting  to  set  forth 
the  very  words  used,  or  even  words  that  were  substantially  the  same 
as  the  words  used.  The  defendant  pleaded  the  general  issue,  with 
notice  of  justification  by  proof  of  the  truth  of  the  alleged  slanders. 
The  case  was  tried  in  the  court  of  common  pleas,  and  resulted  in  a 
verdict  for  the  plaintiff  for  one  dollar.  It  comes  before  us  on  excep- 
tions taken  by  the  plaintiff. 

The  first  exception  is  because,  in  the  court  below,  immediately  after 
the  plaintiff  had  opened  his  case,  the  defendant's  counsel  gave  no- 
tice that  he  should  object  to  all  evidence  offered  except  on  the  first 
count,  because  the  other  counts  did  not  set  forth  the  words  of  the 
alleged  slander;  and  the  court  sustained  the  objection.  The  plain- 
tiff contends  that  this  was  error,  and  cites  Whiting  v.  Smith,  13 
Pick.  (Mass.)  369,  which  fully  supports  him.  That  case  follows  Nye 
v.  Otis,  8  Mass.  122,  5  Am.  Dec.  79,  and  rests,  like  said  case,  largely 
on  a  dictum  of  Lord  Hardwicke  in  Nelson  v.  Dixie,  Cas.  t.  Hardw. 
305,  and  on  certain  books  of  precedents  or  forms.  Lord  Hardwicke's 
dictum  has  been  rejected  in  England  and  in  this  country.  The  doc- 
trine of  the  Massachusetts  cases  has  not  met  with  approval.  The 
leading  case  in  England  is  Cook  v.  Cox,  3  Maul.  &  S.  110-,  (de- 
cided A,  D.  1814.)  "It  is  of  the  substance  of  a  charge  for  slander, 
by  words,"  said  Lord  EHenborough  in  giving  judgment  in  that  case, 
"that  the  words  themselves  should  be  set  out  with  sufficient  innu- 
endoes and  a  sufficient  explanation,  if  required,  to  make  them  in- 
telligible." Lord  Ellenborough  pointedly  condemned  the  dictum  of 
Lord  Hardwicke,  which  was  cited  to  the  contrary.  In  Gutsole  v. 
Mathers,  1  Mees.  &  W.  495,  502,  (decided  A.  D.  1836,)  Lord  Abin- 

46  Strachy  v. ,  Style,  118  (1649:  plea  denying  plaintiff's  good  reputa- 
tion demurred  to  and  held  bad) ;  Coleman  v.  Southwick,  9  Johns.  (N.  Y.)  45, 
48.  6  Am.  Dec.  2-13  (1S12)  semble.  Accord. 

*7  Part  of  the  opinion  omitted. 


Ch.  3)  CASE  133 

ger  said  that  the  judgment  in  Cook  v.  Cox  was  delivered  after  much 
consideration,  and  in  that  case  it  was  accepted  as  settUng  the  law. 
"If  it  were  sufficient  to  state  merely  the  effect  of  the  words,"  said 
Lord  Abinger  in  Gutsole  v.  Mathers,  "any  person  would  be  at  lib- 
erty to  swear  as  to  the  efifect  of  the  words  without  stating  any  precise 
words;  and,  even  if  the  witness  did  state  precise  words,  the  jury 
would  have  to  judge  of  their  legal  effect,  whereas  that  is  generally 
to  be  decided  by  the  court."  In  Cook  v.  Cox,  Lord  Ellenborough- 
gives  another  reason  why  it  is  important  that  the  words  should  be 
set  out.  "Unless  the  very  words  are  set  out,"  he  says,  "by  which  the 
charge  is  conveyed,  it  is  almost  if  not  entirely  impossible  to  plead 
a  recovery  in  one  action  in  bar  of  a  subsequent  action  for  the  same 
cause.  Identity  may  be  predicated  with  certainty  of  words,  but  not 
of  the  effect  of  them  as  produced  upon  the  mind  of  a  hearer."  Air. 
Chitty,  who  doubtless  states  the  law  as  it  is  understood  to  exist  in 
England,  says:  "The  libel  itself,  or  slanderous  words,  must  be  set 
out  in_Jia;c  verbat^and  the  declafatiori  must  profess  so_to_set  forth 
"TTie  matter2l_U..  Chit.  PI.  *404.  The'  strictness  of  the  ruleTslTTus^ 
Trited  by  fHis:  that,  if  the  slander  be  uttered  in  a  foreign  language, 
it  must  be  set  out  in  the  original  words;**  the  import  thereof  being 
averred  in  English.*^     Zenobio  v.  Axtell,  6  Term  Rep.  162. 

In  this  country  the  English  rule  has  been  followed,  with  some  slight 
relaxation  in  some  of  the  states.  Forsyth  v.  Edmiston,  5  Duer  (N. 
Y.)  653;  Ward  v.  Clark,  2  Johns.  (N.  Y.)  10,  3  Am.  Dec.  383;  Fox 
V.  Vanderbeck,  5  Cow.*  (N.  Y.)  ,513 ;  Taylor  v.  Moran,  4  Mete.  (Ky.) 
127;  Bagley  v.  Johnston,  4  Rich.  Law  (S.  C.)  22;  Parsons  v.  Bel- 
lows, 6  N.  H.  289,  25  Am.  Dec.  461 ;  Haselton  v.  Weare,  8  Vt.  480 ; 
Yundt  v.  Yundt,  12  Serg.  &  R.  (Pa.)  427.  In  Kennedy  v.  Lowry, 
1  Bin.  (Pa.)  393,  it  was  held  that  it  was  not  necessary  that  the  dec- 
laration should  purport  to  set  forth  the  identical  words,  but  it  would 
suffice  if  it  professed  to  set  forth  the  words  substantially  as  used.  In 
Tipton  V.  Kahle,  3  Watts  (Pa.)  90,  it  was  said,  in  explanation  of 
Kennedy  v.  Lowry,  that  the  purport  of  the  words  may  be  laid,  "but 
it  is  not  permitted  to  drop  altogether  both  the  language  and  ideas 
uttered,  and  sum  up  all  in  one  round  charge,  and  then  leave  it  to 
the  jury  to  say  whether  the  words  proved  amounted  to  that  charge." 

4  8  Zenobia  v.  Axtell,  6  D.  &  E.  162  (1795) ;  Jenkins  v.  Phillips.  9  C.  &  P. 
760  (1841) ;  Romano  v.  De  Vita.  191  Mass.  457,  78  N.  E.  105  (1906)  semlile ; 
Wormouth  v.  Cramer.  3  Wend.  (N.  Y.)  395,  20  Am.  Dec.  706  (1829) ;  Rahanser 
V.  Earth,  3  Watts  (Pa.)  28  (1834);  Zeig  v.  Ort,  3  Pinuey  (Wis.)  30  (18.101. 
Accord. 

49  It  is  generally  said  that  a  translation  of  the  original  must  be  given. 
Zenobia  v.  Axtell,  6  D.  &  E.  162  (179.",)  semble ;  Hickley  v.  Grosjean,  Q  Blackf. 
(Ind.)  351  (1842)  semble;  Romano  v.  De  Vita,  191  Mass.  457,  78  N.  E.  105 
(1906)  semble;  Wormonth  v.  Cramer,  3  Weud.  (N.  Y.)  395,  20  Am.  Dec.  706 
(1829) ;  Zeig  v.  Ort,  3  Pinney  (Wis.)  30  (1850).  Accord.  Anonymous,  Hob.  126a 
(16-16) ;    1  Williams'  Saund.  Rep.  242,  note  1.  Contra. 

The  English  translation  is  admitted  by  a  demurrer.  Hickley  v.  Grosjean, 
6  Blackf.  (Ind.)  351  (1842). 


134  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

We  do  not  think  that  the  court  below,  under  the  law  as  thus  laid 
down,  even  in  the  cases  in  which  it  is  laid  down  most  broadly,  com- 
mitted any  substantial  error;  for,  though  the  last  count  may  be  al- 
lowable under  the  Pennsylvania  cases,  it  but  repeats  a  part  of  the 
slander  of  the  first  count  in  such  form  that  proof  thereof  would  like- 
wise be  proof  under  the  first  count.  The  first  exception  must,  there- 
fore, be  overruled.     *     *     * 


Exceptions  overruled. 


50 


WHITING  v.  SMITH. 
(Supreme  Court  of  Massachusetts,  1832.     13  Pick.  364.) 

In  this  case  the  court  sustained  a  count  which  purported  to  state 
merely  the  substance  of  the  slander.  A  part  of  the  opinion  by  Mor- 
ton, J.,  follows: 

*  *  *  This  mode  of  declaring,  in  our  opinion,  infringes  no 
legal  principle  and  violates  no  rule  of  pleading.  It  gives  to  the 
defendant  reasonable  notice  of  the  complaint  to  which  he  is  called  to 
answer;  and  furnishes  adequate  defence  against  another  action  for 
the  same  cause.  The  court  will  always  protect  the  parties  against 
surprise ;  and  for  this  purpose  will  ever  require  the  plaintiff  to  furnish 
a  particular  statement  of  the  grounds  of  his  action,  when  the  nature 
of  the  case  renders  it  necessary.  And  this  practice  extends  to  actions 
of  slander,  as  well  as  to  other  suits.  When  the  judgment  is  pleaded 
in  bar  of  another  action  for  the  same  cause,  there  can  be  no  greater 
difficulty  in  proving  the  identity,  than  in  many  other  actions  where  it 
does  not  appear  from  the  record. 

50  Newton  v.  Stubbs,  2  Shower,  435  (1685) ;  Cook  v.  Cox,  3  M.  &  S.  110 
(1814)  ;  Wright  v.  Clements,  3  B.  &  Al.  503  (1820) ;  Gendron  v.  St.  Pierre.  72 
N.  H.  400,  56  Atl.  915  (1903)  ;  Webster  v.  Holmes.  62  N.  J.  Law,  55,  40  Atl. 
778  (1898);  Blessing  v.  Davis,  24  Wend.  (N.  Y.)  100  (1840);  Bagley  v.  John- 
ston, 4  Rich.  Law  (S.  C.)  22  (1850) ;  Zeig  v.  Ort,  3  Pinney  (Wis.)  30  (1850). 
Accord.     For  cases  contra,  see  the  notes  to  the  next  case. 

A  substantial  variance  from  the  language  stated,  though  the  meaning  re- 
mains the  same,  is  fatal.  Cartwright  v.  Wright,  5  B.  &  Al.  615  (1822) ;  Wal- 
lace V.  Dixon,  82  111.  202  (1870) ;  Kuhlman  v.  Kiefer,  147  111.  App.  162  .(1909) ; 
Jones  V.  Edwards,  57  Miss.  28  (1879) ;  Edgerley  v.  Swain,  32  N.  H.  478  (1855) ; 
Fox  v.  Vanderbeck,  5  Cow.  (N.  Y.)  513  (1826);  Roberts  v.  Lamb,  93  Tenn. 
343,  27  S.  W.  668  (1894). 

But  a  slight  variance  from  the  words  statedj  if  the  sense  is  left  untouched, 
will  be  disregarded.  Orpwood  v.  Barkes,  4  Bing.  261  (1827) ;  Lee  v.  Crump. 
146  Ala.  655,  668,  40  South.  609  (1906) ;  Thomas  v.  Fischer,  71  III.  576  (1874) ; 
Robinson  v.  Van  Auken,  190  Mass.  161,  166,  76  N.  E.  601  (1906 :  affected  by 
statute);  Wiest  v.  Luyendvk,  73  JNIich.  661,  41  N.  W.  839  (1889);  Freisinger 
v.  Moore,  65  N.  J.  Law,  286,  47  Atl.  432  (1900) ;  Kidder  v.  Bacon,  74  Vt.  263. 
277,  52  Atl.  322  (1900). 

It  is  no  objection  that  but  part  of  the  words  are  stated,  provided  that  part 
is  in  itself  actionable.  Buckingham  v.  Murray,  2  Car.  &  P.  46  (1825) ;  Ruth- 
erford V.  Evans,  6  Bing.  451  (1830) ;  Spencer  v,  McMasters,  16  111.  405  (1855) ; 
Edgerly  v.  Swain,  32  N.  H.  478  (1855)  semble. 

If  the  defamation  is  not  in  language,  it  must  be  described  as  accurately  as 
is  reasonable.     Ellis  v.  Kimball,  16  Pick.  (Mass.)  132  (1834). 


Ch.  3)  CASE  135 

There  is  great  convenience  in  this  general  mode  of  declaring.  It 
prevents  unreasonable  prolixity.  For  the  plaintiff  may  not  know 
beforehand  exactly  what  words  he  may  be  able  to  prove.  Witnesses 
may  not  agree  in  their  recollection  of  words,  although  they  may 
entirely  agree  as  to  the  substance.  Hence  with  a  certainty  of  the 
slanderous  charge,  the  plaintiff  may  be  under  the  necessity  of  declaring 
in  a  great  many  counts  and  introduce  a  great  many  different  sets 
of  words,  all,  substantially,  of  the  same  import,  to  meet  his  proof; 
and  thus  occasion  great  prolixity  on  the  record,  great  inconvenience 
in  the  trial,  and  perhaps  at  last,  with  a  just  cause  and  plenary  proof, 
be  defeated  by  some   verbal  variance. 

If  the  plaintiff  sets  forth  the  words,  he  is  bound  to  prove  them 
as  laid.  Things  immaterial  in  themselves  are  often  made  material 
by  a  special  allegation.  And  although  the  ancient  strictness  in  this 
respect  is  exploded,  yet  it  is  now  a  settled  and  reasonable  rule  in 
pleading,  that  the  allegata  and  probata  must  agree,  and  that  the  ma- 
terial and  actionable  words  must  be  proved  as  stated,  and  cannot  be 
supplied  by  proof  of  equivalent  words. 

To  prevent  a  failure  of  justice  and  to  preserve  the  administra- 
tion of  the  law  from  reproach,  courts  have  been  tempted  to  allow 
variances  in  proof  inconsistent  with  the  rules  of  good  pleading.  And 
this  has  introduced  many  nice  and  unfounded  distinctions,  if  not 
inconsistencies  and  absurdities  in  this  branch  of  the  law. 

It  cannot  be  necessary  to  state  the  words,  to  enable  the  court  to 
determine  whether  they  are  actionable  or  not;  for  this  can  as  well 
be  done  upon  proof  in  court,  as  upon  averment  and  demurrer,  and 
will  save  the  court  the  unnecessary  labor  of  deciding  a  case  which 
may  never  be  proved,  and  perhaps  never  existed   in  fact. 

Upon  a  careful  revision  of  the  subject,  we  are  well  satisfied  with 
the  law  as  laid  down  in  Nye  v.  Otis.^^  We  think  that  case  was  fully 
considered  and  wisely  decided;  and  we  are  happy  to  say  in  relation 
to  it,  stare  decisis.     *     *     * 

All  the  counts,  in  our  opinion,  are  good,  and  the  proof  proper  to 
support  them;   judgment  must  therefore  be  rendered  on  the  verdict. ^^ 

61  8  Mass.  122,  5  Am.  Dec.  79  (1811). 

B 2  Nelson  v.  Dixie,  Cas.  t.  Hardwicke,  305  (1736)  semhle;  Kimball  v.  Pas:e, 
96  Me.  487,  52  Atl.  1010  (1902) ;  Kennedy  v.  Lowry,  1  Bin.  (Pa.)  393  (1808) ; 
Lukehai-t  v.  Byerly,  53  Pa.  418  (1806)  semble;  Kyzer  v.  Grubbs,  2  McCord, 
305  (1822). 

In  Massachusetts  a  statute  changed  the  rule  laid  down  in  the  principal  case 
and  required  the  words  to  be  stated  substantially.  Lee  v.  Kane,  6  Gray,  495 
(1856) ;  Middleby  v.  Effler,  118  Fed.  261,  55  C.  "c.  A,  355  (1902 ;  Massachu- 
setts law). 


ioG  PLEADINGS   IN   TORT  ACTIONS  (Part   1 

BRETTUN  V.  ANTHONY. 
(Supreme  Court  of  Massachusetts,  18G9.     103  Mass.  37.) 

Tort  for  slander.  The  third  count  of  the  declaration  alleged  that 
the  plaintiff  was  the  owner  of  a  certain  building  in  Raynham,  and  oc- 
cupied it,  for  the  purpose  of  his  trade,  with  goods,  wares,  merchandise 
and  other  chattels,  his  property,  and  for  a  store;  that  said  building, 
and  also  said  goods,  wares,  merchandise,  and  other  chattels  therein 
were  insured  against  loss  or  damage  by  fire,  and  were  destroyed  by  fire 
during  the  time  they  were  insured;  that  "after  said  destruction  by  fire, 
the  defendant,  speaking  with  reference  thereto,  well  knowing  that  said 
building,  and  also  said  goods,  wares,  merchandise  and  other  chattels 
therein  were  insured  against  loss  or  damage  by  fire  as  aforesaid,  pub- 
licly, falsely  and  maliciously  accused  the  plaintiff  of  the  crime  of  wil- 
fully burning  said  building,  and  the  goods,  wares,  merchandise  and 
other  chattels  therein,  at  the  time  they  were  so  insured  against  loss 
or  damage  by  fire,  with  the  intent  to  injure  the  insurers  thereof,  by 
words  spoken  of  the  plaintiff,  substantially  as  follows :  'Some  of  the 
folks  up  your  way  think  that  Henry'  (meaning  the  plaintiff)  'burned 
the  store.'  T  (meaning  the  defendant)  'have  no  doubt-  but  what  he' 
(meaning  the  plaintiff)  'burned  it.'  " 

The  fourth  count  alleged  that  the  plaintiff  petitioned  for  the  bene- 
fit of  the  bankrupt  act,  and  was  duly  adjudged  a  bankrupt;  that  pro- 
ceedings upon  the  plaintiff's  petition  were  now  pending;  that  the  de- 
fendant was  a  creditor  of  the  plaintiff",  and  had  duly  proved  his  claim 
in  bankruptcy ;  that  "the  defendant,  well  knowing  that  said  proceed- 
ings in  bankruptcy  had  been  commenced  as  aforesaid,  publicly,  falsely, 
and  maliciously  accused  the  plaintiff  of  a  crime  and  misdemeanor;  in 
this,  that  the  plaintiff,  with  the  intent  to  defraud  his  creditors,  within 
three  months  before  the  commencement  of  the  proceedings  in  bank- 
ruptcy on  said  petition  of  the  plaintiff,  did  dispose  of,  otherwise  than 
by  bona  fide  transactions  in  the  ordinary  way  of  trade,  his  goods  or 
chattels  obtained  on  credit  and  remaining  unpaid  for ;  and  in  this,  that 
the  plaintiff  did  attempt  to  account  for  the  property,  or  some  pait 
thereof,  by  fictitious  losses  or  expenses ;  and  in  this,  that  the  plaintiff 
did  acts  which  are  offences  under,  and  are  in  violation  of"  the  bank- 
rupt act;  "by  words  spoken  of  the  plaintiff,  during  the  time  of  the 
pendency  of  said  proceedings  in  bankruptcy,  substantially  as  follows : 
'He'  (meaning  the  plaintiff)  'is  the  biggest  rascal  off  of  the  gallows. 
Some  of  the  folks  up  your  way  think  that  Henry'  (meaning  the  plain- 
tiff) 'burned  the  store.  I  have  no  doubt  but  what  he'  (meaning  the 
plaintiff)  'burned  the  store;'  the  defendant  thereby  referring  to  the 
destruction  by  fire  referred  to  in  the  preceding  count,  by  which  fire  cer- 
tain memoranda,  books,  accounts  and  other  papers  relating  to  the 
plaintiff"'s  trade  or  business  were  destroyed ;  and  that  the  defendant 
did  publicly,  falsely  and  maliciously  accuse  the  plaintiff,  in  words  spok- 


Ch.  3)  CASE  137 

en  of  the  plain  dff  as  above  set  forth,  of  acts,  matters  and  things" 
whereby  the  plaintiff's  discharge  in  bankruptcy  would  be  withheld,  or, 
if  granted,  would  be  invalidated. 

The  defendant  demurred  to  these  two  counts  as  setting  forth  no 
good  cause  of  action ;  and  Wells,  J.,  reserved  the  case  on  the  demurrer 
for  the  consideration  of  the  full  court. 

Colt,  J.  The  sufficiency  of  two  counts  in  the  plaintiff's  declara- 
tion is  submitted  upon  this  demurrer.  The  words  actually  used,  as 
set  forth  in  these  counts,  do  not  alone  impute  a  crime  which  would  ren- 
der the  plaintiff  liable  to  punishment.  They  are  consistent  with  a 
burning  caused  without  criminal  intent,  by  carelessness  or  accident; 
and  additional  facts  are  therefore  alleged  in  each  count,  from  which, 
it  is  claimed,  the  criminal  quality  of  the  act  appears  with  certainty. 
This  is  to  be  settled  by  the  familiar  rules  which  govern  the  pleadings 
in  actions  of  slander.^^ 

Words JntJTemselves  harmless,  or  of  doubtful  import,  become  slanr 
(Jerous  when  used  with  reference  to  known  exiiting  facts__and^circum;; 
"stances  in  such  manneii  as  to  convey  to  the  hearer  a  charge  ofcrirne. 

"This  limited  protection  to  reputation  the  law  attempts  to  give  against 
indirect  verbal  imputation.     It  must  however  be  mad e_  apparent,,  byi. 
suitable  averments  in  the  decTara,tion,  that  the  language  employed  was 
used    by   the    defendant    ■i]r)nc]ermi'^]y^n    fhj^    e;^er\t  s^J^feA  ]     and    the 

"words,  when  taken  in  their  plain  and  natural  import,  must  be  capa— 

~^le  of  the  meaning  attributed  to  them. 

The  facts  which  determine  the  alleged  meaning  are  usually  stated  in 
a  prefatory  manner,  followed  by  a  positive  averment,  or  colloquium, 
that  the  discourse  was  of  and  concerning  these  circumstances.  What- 

5  3  It  must  appear  in  the  declaration  that  the  words  are  defamatory,  and,    ^ 
if  they  were  oral  and  special  damage  is  not  alleged,  that  they  are  actioualilft 
per  se. 

If  the  words  on  their  face  meet  this  requirement,  no  further  allegation  is 
necessary.  Defamatory:  Button  v.  Hey  ward,  8  Mod.  24  (1722) ;  Croswell  v. 
Weed,  25  Wend.  (N.  Y.)  621  (1841);  Morissey  v.  Publishing  Co.,  19  R.  I.  124, 
32  Atl.  19  (1895).  Actionable  per  se:  Worth  v.  Butler,  7  Blackf.  (Ind.)  251 
(1844) ;  Fowle  v.  Bobbins,  12  Mass.  514  (1815) ;  Bricker  v.  Potts,  12  Pa.  200 
(1849). 

If  the  words  on  their  face  do  not  meet  this  requirement  then  facts  must 
be  alleged  which,  if  the  words  were  spoken  concerning  these  facts,  will  make 
the  words  have  a  meaning,  defamatory  or  actionable  per  se.  Defamatory: 
Todd  V.  Hastings.  2  Saunders,  307  (1671) ;  Hillhouse  v.  Dunning,  6  Conn. 
391.  407  (1827)  ;  McClean  v.  Fowle,  2  Cranch,  C.  G.  (D.  C.)  118.  Fed.  Cas.  No. 
8,691  (1816) ;  Gerald  v.  Publishing  Co.,  90  111.  App.  205  (1S99) ;  Tebbetts  v. 
Goding,  9  Gray  (Mass.)  2.54  (1857);  Taylor  v.  Kneeland,  1  Dous.  (Mich.)  67, 
72  (1843) ;  Edgerly  v.  Swain,  32  N.  H.  478  (1855) ;  Lukehart  v.  Byerly,  53  Pa. 
418  (1866) ;  Mclntyre  v.  Weinert,  195  Pa.  52,  45  Atl.  666  (1900)  semble ; 
Payne  v.  Tancil,  98  Va.  262,  35  S.  E.  725  (1900)  semble.  Actionable  per  se: 
Holt  V.  Scholefield,  6  D.  &  E.  691  (1796) ;  Peury  v.  Dozier,  161  Ala.  292,  49 
South.  909  (1909)  ;  Wing  v.  Wing.  66  Me.  62,  22  Am.  Rep.  548  (1S7G) ;  Dor- 
sey  V.  Whipps,  8  Gill  (Md.)  457  (1819) ;  Young  v.  Cook,  144  Mass.  38,  10  N.  E. 
719  (1887) ;  Dyer  v.  Morris,  4  Mo.  214  (1835)  :  Walton  v.  Frost,  22  R.  I.  157, 
40  Atl.  680  (1900) ;  Hoar  v.  Ward,  47  Vt.  657  (1875).  Such  allegations  are 
often  called  inducement. 


138  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

ever  the  particular  order  of  their  arrangement,  these  averments  become 
material  and  traversable,  and  it  must  appear  from  them  that  the  words 
impute  the  alleged  offence.  It  is  a  further  elementary  principle,  that 
the  colloquium  must  extend  to  the  whole  of  the  prefatory  inducement, 
necessary  to  render  the  words  actionable. 

An  omission  in  tlie  respect  indicatedwillnot  be  aided  by  mere  in- 
nuendoes, jwhose  office  cannot  add  to  or~extend  the  sena£_Qr_gj£ect  of 

"^fie  words  set_forth,  or  refer  to  anything  not  properly  alleged  in  tlie 
/^^eclaratIon,.Si     Snell  v.  Snow,  13  Mete.  278,  46  Am.  Dec.  730.    Gen- 

'^ral  allegations,  that  the  defendant  charged  the  plaintiff,  falsely  and 
maliciously,  with  the  commission  of  a  particular  crime,  accompanied 
by  innuendoes,  however  broad  and  sweeping,  will  not  aid  a  declaration 
otherwise  imperfect.  Thus,  the  act  of  burning  one's  own  property  be- 
comes a  crime  only  under  special  circumstances,  as  when  done  for  the 
purpose  of  defrauding  the  insurers,  or  in  violation  of  the  provisions 
of  the  bankrupt  act.  Conversation  about  such  burning,  otherwise  in- 
nocent, or  of  doubtful  import,  may  be  made  actionable,  if  reference 
was  had  in  it  to  these  special  circumstances,  in  such  manner  as  neces- 
sarily to  impute  the  crime.  And  the  declaration  is  defective,  if  it  does 
not  set  this  forth  by  suitable  averments. 

It  is  no  answer,  that  facts  and  circumstances  enough'  are  stated,  un- 
less it  is  also  averred  that  the  speech  of  the  defendant  was  with  ref- 
erence to  such  facts,  or  so  many  of  them  as  are  essential  elements  in 
the  crime.  Nor  is  this  want  supplied  by  alleging  that  the  defendant, 
at  the  time  of  speaking  the  words,  had  knowledge  of  the  particular  cir- 
cumstances which  make  the  act  of  which  he  speaks  criminal.  He  is  to 
be  charged  only  for  a  wrong  actually  committed,  irrespectively  of  his 
secret  knowledge  or  intent.  JIe_2S_responsible_onJy  for  the  meaning 
which  the  ^vords_used^by  him,  reasonably  interpreted,  'cohvey^'to  the  uii^ 

"  def sfandTng   of   the    persons    fn^^whose   pfesence~t^6y   were   uttered. 

^-Towley:  Ro^bmsT  12  Mass.  498 ;  Bloss  v.  Tobey,  2  Pick.  320;  Carter 
V,  Andrews,  16  Pick.  1,  5 ;  Sweetapple  v.  Jesse,  5  B.  &  Ad.  27. 

Under  the  practice  act,  these  rules  of  pleading  still  prevail.  No 
averment  need  now  be  made  which  the  law  does  not  require  to  be 
proved ;   but  all  the  substantial  facts,  necessary  to  constitute  the  cause 

5  4  Innuendoes  will  not  serve  the  purposes  of  inducement  and  colloquium. 
Barbam  v.  Nethersol,  4  Coke,  20  (1002) ;  Day  v.  Eobinson,  1  A.  &  E.  554 
(1834) ;  Wofford  v.  Meeks,  129  Ala.  349,  30  South.  625,  55  L.  R.  A.  214,  87 
Am.  St.  Rep.  66  (1900) ;  McLaughlin  v.  Fisher,  136  111.  Ill,  116,  24  N.  B.  60 
(1890);  Hays  v.  Mitchell,  7  Blackf.  (Ind.)  117  (1844);  Hanna  v.  Singer,  97 
Me.  128,  53  Atl.  991  (1902);  Kilgour  v.  Co.,  96  Md.  16,  30,  53  Atl.  716  (1902); 
Bloss  V.  Tobey,  2  Pick.  (Mass.)  320  (1824) ;  York  v.  Johnson,  116  Mass.  482 
(1875)  ;  Watson  v.  Journal,  143  Mich.  430,  107  N.  W.  81,  5  L.  R.  A.  (N.  S.)  480 
(1900) ;  Dyer  v.  Morris,  4  Mo.  214  (1835) ;  Joralemon  v.  Pomeroy,  22  N.  J. 
Law,  271  (1849);  Miller  v.  Maxwell,  16  Wend.  (N.  Y.)  9  (1836);  Naulty  v. 
Bulletin  Co.,  206  Pa.  128.  55  Atl.  862  (1903);  Hackett  v.  Publishing  Co.,  18 
R.  I.  589.  29  Atl.  143  (1894)  ;  Gordon  v.  Publishing  Co.,  81  Vt.  237,  244,  69 
Atl.  742  (1908) ;    Argabright  v.  Jones,  46  W.  Va.  144,  32  S.  E.  995  (1899). 


Ch.  3)  CASE  139 

of  action,  must  be  stated  with  substantial  certainty.  Tebbetts  v.  Cod- 
ing, 9  Gray,  25-i;   Chenery  v.  Goodrich,  98  Mass.  224. 

The  plaintiff's  declaration,  on  the  counts  under  consideration,  does 
not  in  our  opinion  meet  the  requirements  here  stated.  The  first  count 
avers,  in  substance,  the  destruction  of  the  plaintiff's  bui/ding  with  the 
goods  therein,,  and  the  fact  that  the  building  and  goods  were  at  the 
time  of  the  loss  insured  against  damage  by  fire.  It  then  charges  that 
the  defendant,  speaking  with  reference  to  said  destruction  by  fire,  and 
knowing  of  the  insurance,  accused  the  plaintiff  of  the  crime  of  burn- 
ing with  intent  to  injure  the  insurer,  by  the  words  recited.  The  dif- 
ficulty is,  that  the  words  thus  spoken  are,  by  reasonable  construction, 
connected  with  only  one  of  the  prefatory  allegations,  namely,  the  burn- 
ing of  the  building,  and  [not?]  with  the  circumstances  of  the  insur- 
ance. They  do  not  therefore  impute  a  crime.  In  other  words,  the  col- 
loquium is  not  coextensive  with  the  whole  inducement  which  the 
pleader  thought  necessary  to  set  out. 

The  other  count  is  open  to  the  same  objection,  and  fails  to  connect 
the  words  with  any  conversation  relating  to  the  plaintiff"'s  bankruptcy, 
or  any  acts  which  are  made  offences  under  the  bankrupt  act. 

Demurrer  sustained.^ ^ 


PEAKE  V.  OLDHAM. 

(Court  of  Kings  Bench,  1775.     1  Cowp.  275.) 

Error  from  the  Common  Pleas  in  an  action  of  slander,  in  which  the 
plaintiff,  now  the  defendant  in  error,  declared  that  upon  a  colloquium 
of  and  concerning  the  death  of  one  Daniel  Dolly,  the  said  Thomas 
Peake  said  to  the  said  James  Oldham,  "you  are  a  bad  man,  and  I  am 
thoroughly  convinced  that  you  are  guilty,  (meaning  guilty  of  the  mur- 
der of  the  said  Dolly)  and  rather  than  you  should  want  a  hangman,  I 
would  be  your  executioner."  And  being  apprized  that  the  said  words 
were  actionable,  and  interrogated  how  he  would  prove,  what  he  said, 
answered,  that  "he  would  prove  it  by  Mrs.  Harvey."  2.  You  are  a 
bad  man,  and  I  am  thoroughly  convinced  that  you  are  guilty  (innuendo 
ut  antea)  and  rather  than  you  should  want  a  hangman  I  would  be  your 
executioner.  Being  interrogated  how  he  could  prove  the  said  James 
Oldham  guilty  of  the  murder  of  the  said  D.  Dolly,  he  replied,  "I  can 
prove  it  by  Mrs.  Harvey."  3.  "You  are  guilty,"  (innuendo  ut  antea) 
"and  I  will  prove  it."  4.  "I  am  thoroughly  convinced  that  you  are 
guilty,"  (meaning  guilty  of  the   death  of   Daniel  Dolly),  and   rather 

5  5  Savapre  v.  Robery,  2  Salk.  694  (169S) ;  Hawkes  v.  Hawkey,  8  East,  427 
(1807) ;  Linville  v.  Earlywiue,  4  Blackf.  (Ind.)  469  (1838)  semble ;  Wing  v. 
Wing,  06  Me.  62.  22  Am.  Rep.  548  (1876) ;  Burtch  v.  Nickerson,  17  Johns, 
217,  8  Am.  Dec.  390  (1819)  semble;   Ryan  v.  Madden.  12  Vt.  51  (1840). 

The  rule  is  the  same  where  the  inducement  is  used  to  show  that  the  words 
are  defamatory.  Harkness  v.  Daily  News  Co.,  102  111.  App.  1G2  (1902); 
Patterson  v.  Wilkinson,  55  Me.  42,  92  Am.  Dec.  568  (1867). 


liO  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

than  you  should  go  without  a  "hangrnan  I  will  hang  you."  6.  "You 
are  guilty,"  innuendo  (guilty  of  the  murder  of  the  said  Dolly).  By 
reason  whereof,  and  to  clear  his  character,  the  said  James  Oldham  was 
obliged  to  procure,  and  did  procure,  an  inquest  in  due  form  of  law 
to  be  taken  on  the  body  of  the  said  Daniel  Dolly. 

Upon  not  guilty  pleaded,  the  jury  found  a  general  verdict  upon  all 
the  counts,  with  £500.  damages. 

The  defendant  first  moved  for  a  new  trial  in  C.  B.  which  was  re- 
fused; and  afterwards  in  arrest  of  judgment,  which  rule  was  likewise 
discharged  by  Gould  and  Blackstone,  Justices.  (Absentib.  De  Grey, 
Chief  Justice,  and  Narhs,  Justice.) 

Mr.  Davenport,  for  the  plaintiff  in  error,  objected  to  the  fourth  and 
fifth  counts  of  the  declaration,  as  containing  no  sufficient  ground  of 
action.  1st,  Because  the  words  there  laid  are  not  scandalous  in  them- 
selves. 2ndly,  Not  relatively  so,  by  reference  to  any  prefatory  matter 
before  stated:  and  consequently  not  capable  of  being  made  so  by  in- 
nuendo. 

1st,  The  words,  "you  are  guilty,"  have  no  determinate  meaning  at 
all,  without  specifying  some  act  or  charge  to  which  they  are  referable, 
and,  therefore,  most  clearly  not  actionable  in  themselves.  2nd.  The  col- 
loquium laid  is  only  a  colloquium  of  the  death  of  D.  Dolly,  not  of  an 
untimely  or  violent  death,  or  that  he  died  by  the  hands  of  the  defend- 
ant, and,  therefore,  cannot  by  an  innuendo  be  extended  to  a  charge  of 
murder.     *     *     * 

Mr.  Buller,  for  the  defendant,  was  stopped  by  Lord  MansEield,  as 
being  unnecessary  to  give  himself  any  trouble. 

Lord  Mansfield.^**  *  *  *  -j^q^  ^g  consider  then,  the  grounds 
upon  which  the  declaration  in  the  present  case  is  attempted  to  be  im- 
peached. Two  of  the  counts  are  objected  to,  viz.  the  4th  and  last.  In 
the  4th  it  is  said  thus,  "I  am  thoroughly  convinced  that  you  are  guilty ;" 
innuendo,  that  you  are  guilty  of  the  death  of  the  said  Daniel  Dolly, 
"and  rather  than  you  should  go  without  a  hangman,  I  will  hang  you." 
Upon  this  count  it  is  argued,  that  there  are  many  innocent  ways,  by 
which  one  man  may  occasion  the  death  of  another;  therefore,  the 
words  "guilty  of  the  death,"  do  not  necessarily  in  themselves  import 
a  charge  of  murder ;  and  consequently,  as  no  particular  act  is  charged 
which  in  itself  amounts  to  an  imputation  of  a  crime,  the  words  are  de- 
fectively laid.  What?  when  the  defendant  tells  the  plaintiff  "he  is 
guilty  of  the  death  of  a  person,"  is  not  thait  a  charge  and  imputation 
of  a  very  foul  and  heinous  kind?  Saying  that  such  a  one  is  the  cause 
of  another's  death,  as  in  the  case  of  Miller  v.  Buckden,  2  Bulstr.  10, 
11,  is  very  different;  because  a  physician  may  be  the  cause  of  a  man's 
death,  and  very  innocently  so ;  but  the  word  "guilty,"  implies  a  ma- 
licious intent,  and  can  be  applied  only  to  something  which  is  univers- 
ally allowed  to  be  a  crime.     But  the  defendant  does  not  rest  here:  on 

6  6  Part  of  the  case  omitted. 


Ch.  3)  CASE 


141 


the  contrary,  in  order  to  explain  his  meaning  he  goes  on  and  says,  "and 
rather  than  yon  should  be  without  a  hangman,  I  will  hang  you." 
These  words  plainly  shew  what  species  of  death  the  defendant  meant, 
and,  therefore,  in  themselves  manifestly  import  a  charge  of  murder. 

The  innuendo  to  the  words  of  the  next  count  is,  that  they  mean 
"guilty  of  the  murder  of  Daniel  Dolly,"  and  the  jury  by  their  verdict 
have  found  the  fact;  namely,  that  such  was  the  meaning  of  the  de- 
fendant. But  that  is  not  all;  for  the  jury  find  a  special  damage  sus- 
tained by  the  plaintiff  in  being  obliged,  in  consequence  of  the  charge 
so  made  by  the  defendant,  to  have  an  inquest  taken  on  the  body  of  the 
deceased. 

What  ?  After  a  verdict,  shall  the  court  be  guessing  and  inventing  a 
mode,  in  which  it  might  be  barely  possible  for  these  words  to  have  been 
spoken  by  the  defendant,  without  meaning  to  charge  the  plaintiff  with 
being  guilty  of  murder?  Certainly  not.  Where  it  is  clear  that  words 
are  defectively  laid,  a  verdict  will  not  cure  them.  But  where,  from 
their  general  import,  they  appear  -to  have  been  spoken  with  a  view  to 
defame  a  party,  the  court  ought  not  to  be  industrious  in  putting  a  con- 
struction upon  them,  different  from  what  they  bear  in  the  common  ac 
ceptation  and  meaning  of  them.     *     *     * 

Afton,  Willes,  and  Ashhurst,  Justices,  of  the  same  opinion. 

Judgment  affirmed. ^^ 

B7  Vickers  v.  Stoneman,  73  Mich.  419,  41  N.  W.  495  (1889)  semble;  Richard 
son  V.  Thorpe,  73  N.  H.  532,  63  Atl.  580  (1906) ;  Joralemou  v.  Pomeroy,  22  N. 
J.  Law,  271  (1849) ;  Cooper  v.  Greeley,  1  Denio,  347,  361  (1845)  ;  Stoner  v. 
Erisman,  206  Pa.  600,  50  Atl.  77  (1903).  Accord.  Sheely  v.  Biggs,  2  Har.  & 
J.  (Md.)  303,  3  Am.  Dec.  552  (1808).  Coutra. 

Where  the  words  have  a  plain  meaning  on  which  one  is  relying,  an  in- 
nuendo is  unnecessary.  Donahoe  v.  Publishing  Co.,  4  Pennewill  (Del.)  166, 
55  Atl.  337  (1902) ;  Harris  v.  Burley,  8  N.  H.  256  (1S36)  semble;  Curley  v. 
Feenev,  62  N.  J.  Law,  70,  40  Atl.  678  (1898)  semble;  1  Williams'  Saund. 
242a,  note. 

If  the  words  require  no  innuendo,  an  innuendo  alleged  may  be  disregarded 
and  the  plain  meaning  relied  upon,  if  the  innuendo  is  unjustified  by  the 
entire  declaration :  Harvey  v.  French,  1  Cr.  &  M.  11  (1832) ;  Mix  v.  Wood- 
ward, 12  Conn.  262,  285  (1837) ;  151am  v.  Badger,  23  111.  498  (1860)  ;  Hayues 
V.  Co.,  169  Mass.  512,  48  N.  E.  275  (1897) ;  Sanford  v.  Rowley,  93  Mich.  119. 
52  N.  W.  1119  (1892);  Hudson  v.  Garner,  22  Mo.  424  (1856);  Curley  v.  Fee- 
ney,  62  N.  J.  Law,  70.  40  Atl.  678  (1898)  ;  Brown  v.  Telegram,  25  R.  I.  117, 
54  Atl.  1061  (1903) ;  Jones  v.  Roberts.  73  Vt.  201,  50  Atl.  1071  (1901) ;  Payne 
V.  Tancil.  98  Va.  262.  35  S.  E.  725  (1900).  If  the  innuendo  is  justified,  though 
nnnecessarv,  the  Enulish  courts  refused  to  permit  a  departure  from  it 
Smith  V.  Carey,  3  Camp.  461  (1813) ;  Williams  v.  Stott,  1  Cr.  &  M.  675,  87 
(1833) ;  Jackson  v.  Adams.  2  Ring.  N.  C.  402  (1835).  In  Richardson  v. 
Thorpe,  73  N.  H.  532,  63  Atl.  580  (1906),  the  court  allowed  such  a  departure. 
In  Jones  v.  Roberts,  73  Vt.  201,  50  Atl.  1071  (1901),  the  English  view  was 
taken  obiter. 


i 


142  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

ROELLA  V.  FOLLOW. 

(Supreme  Court  of  Indiana,   1845.     7  Blackf.  377.) 

Error  to  the  Allen  Circuit  Court. 
^   Blackford,  J.    This  was  an  action  of  slander  brought  by  the  plain- 
tiff in  error.     The  declaration  contains  six  counts. 

The  first  count  states  that  before  the  committing  of  the  grievances, 
&c.,  a  certain  complaint  had  been  pending  before  a  certain  justice  of 
the  peace,  wherein  the  State  of  Indiana  was  plaintiff,  &c. ;  and  that, 
on  the  trial,  the  plaintiff"  was  sworn  and  gave  evidence  as  a  witness  on 
^behalf  of  the  State ;  yet  the  defendant  well  knowingthe  g£emiseSj_  in 
a  certain  discourse,  &c.,  of  ahd^concernTiig'the  plaintTfff&c,  falsely  and 
maliciously  spoke  of  and  concerning  the  plaintiff,  and  of  and  concern- 
ing his  said  evidence  at  said  trial,  the  false,  scandalous,  malicious,  and 
defamatory  words  following,  that  is  to  say,  "He"  (meaning  the  plain- 
tiff) "took  a  false  oath." 

The  second,  third,  and  fifth  counts  are  similar  to  the  first. 

The  fourth  count  alleges  that  in  a  certain  other  discourse,  which 
the  defendant  then  and  there  had  of  and  concerning  the  plaintiff,  &c., 
he,  the  defendant,  then  and  there  spoke  and  published  of  and  concern- 
ig  the  plaintiff,  «S;c.,  the  false,  scandalous,  malicious,  and  defamatory 
words  following,  that  is  to  say,  "You"  (meaning  the  plaintiff)  "are  a 
thief."  The  words  laid  in  the  sixth  count  are,  "He"  (the  plaintiff 
meaning)  "is  a  thief."  The  declaration  concludes  by  alleging  general 
damage  in  the  usual  form. 

There  was  a  general  demurrer  to  each  of  the  counts ;  and  the  de- 
murrers were  sustained.    Judgment  for  the  defendant. 

The  first,  second,  third,  and  fifth  counts  are  insufficient.  The  words 
here  complained  of  are  not  in  themselves  actionable.  They  amount 
only  to  a  charge  that  the  plaintiff  was  foresworn,  which  is  not  in  itself 
actionable.  Holt  v.  Scholefield,  6  T.  R.  691.  These  counts,  it  is  true, 
contain  the  requisite  inducement  and  colloquium,  but  they  omit  the 
innuendo  which  is  necessary,  in  such  cases,  to  explain  the  defendant's 
meaning  by  reference  to  the  previous  matter.  There  is  no  objection 
to  the  other  counts.  The  words  there  laid  do,  of  themselves,  import 
a  crime ;  and  there  was  consequently  no  occasion  for  an  innuendo  ex- 
plaining their  meaning. 

Per  Curiam.  The  judgment  is  reversed  with  costs.  Cause  re- 
manded, &c.^^ 

sscurley  v.  Feeney,  62  N.  J.  Law,  70,  73,  40  Atl.  678  (1S9S)  semble;  Gos- 
ling V.  Morgan,  32  Pa.  273  (185S)  semble;  Wood  v.  Scott,  13  Vt.  42,  47  (1841) 
sfimble;    Sanderson   v.   Hubbard,   14  Vt.  462  (1842)   semble.  Accord. 


1 


Ch.  3)  CASH  •  143 

WAISTEL  V.  HOLMAN. 

(Superior  Court  of  New  York,  1829.     2  Hall,  193.) 

Demurrer  to  the  first  and  second  counts  of  the  plaintiff's  declaration. 
The  action  was  for  a  libel  contained  in  a  letter  written,  addressed  and 
sent  by  the  plaintiff  to  the  defendant;  and  the  question  was  as  to  the 
sufficiency  of  the  publication  set  forth  in  the  declaration. 

The  first  count  averred  that  the  defendant,  on  the  28th  day  of  Sep- 
tember, in  the  year  1828,  at  the  city  and  county  of  New  York,  "did 
compose,  write,  and  deliver,  and  cause  to  be  composed,  written,  and 
delivered  to  the  plaintiff  a  certain  false,  scandalous,  malicious,  defam- 
atory, and  libellous  matter  following,"  &c.,  setting  out  the  letter  in 
hsec  verba. 

The  second  count  alleged,  that  the  defendant  "published  and  caused 
and  procured  to  be  published,  a  certain  other  false,  scandalous,  mali- 
cious, and  defamatory  libel,  addressed  to  the  plaintiff,  and  of  and  con- 
cerning the  plaintiff,  containing  certain  other  false,  scandalous,  ma- 
licious, defamatory,  and  libellous  matter,  of  and  concerning  the  plain- 
tiff, as  follows,"  &c.,  setting  out  the  letter  as  in  the  first  count. 

To  these  two  counts  the  defendant  demurred ;  but  took  issue  upon 
the  other  counts  in  the  declaration,  which  were  for  slander. 

Oakley,  J.  In  Lyle  v.  Clason,  1  Caines,  581,  the  supreme  court  de- 
cided, that  in  every  action  for  a  libel,  a  publication  of  the  libellous  mat- 
ter must  be  averred,  that  the  sending  of  a  sealed  letter  by  the  defend- 
ant to  the  plaintiff  is  not  a  publication  of  the  libel,  and  that  any  letter 
sent  is  to  be  presumed  to  have  been  sealed.  The  principle  of  that  case 
is,  that  when  the  declaration  shows  a  publication  of  the  libel  to  the 
plaintiff  only,  the  action  cannot  be  sustained.  The  court  say,  that  the 
"basis  of  the  action  is  damages  for  the  injury  to  the  character  in  the 
opinion  of  others,"  and  that  can  only  arise  from  publication  to  third 
persons.  In  the  present  case,  the  declaration  alleges  that  the  defend- 
ant composed,  wrote  and  delivered  to  the  plaintiff  a  certain  libel,  &c., 
addressed  and  directed  to  the  plaintiff,  &c.  This  averment  does  not 
show  a  publication  of  the  libel.  The  plaintiff  could  not  have  sustained 
any  injury  by  it,  unless  he  communicated  its  contents  to  others,  and 
of  course  had  no  right  to  sustain  this  action  for  damages.  The  first 
count  falls  clearly  within  the  case  of  Lyle  v.  Clason,  and  the  demurrer 
to  it  is  well  taken. ^® 

The  second  count  sets  forth,  that  the  defendant  "did  publish  and 
cause  and  procure  to  be  published,  a  certain  other  libel,  addressed  to 
the  plaintiff."  Here  is  a  sufficient  publication  averred.  Although  it 
may  be  inferred  that  the  libel  was  in  the  form  of  a  letter  addressed  by 
the  defendant  to  the  plaintiff,  yet  the  publication  may  have  been,  by 

59  Anonymous,  Style,  70  (1G48) ;  Kysor  v.  Grubbs,  2  McCord  (S.  C.)  305 
(1822);  O'Donuell  v.  Nee  (C.  C.)  86  Fed.  90  (189S:  Massachusetts  law).  Ac- 
cord. 


144  •         PLEADINGS   IN   TORT   ACTIONS  (Part    1 

showing  it  to  other  persons,  or  even  by  inserting  it  in  a  newspaper. 
The  particular  mode  of  publication  need  not  be  set  forth.  The  demur- 
rer to  the  second  count  must,  therefore,  be  overruled. ^'^ 

Judgment  for  the  defendant  on  the  demurrer  to  the  first  count,  and 
for  the  plaintiff  on  the  demurrer  to  the  second  count,  with  liberty  to 
either  party  to  amend. 


DUVIVIER  V.  FRENCH  et  al. 

(Circuit  Court  of  Appeals,  Seventh  Circuit,  1900.     104  Fed.  278, 
43  C.  O.  A.  520.) 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the  Northern 
Division  of  the  Northern  District  of  Illinois. 

The  action  in  the  court  below  was  in  case  for  damages  growing 
out  of  the  publication  of  an  alleged  libel.  The  declaration  is  as 
follows : 

"A.  Devin  Duvivier,  plaintiff  in  this  suit,  by  his  attorney,  Kenesaw 
M.  Landis,  complains  of  Florence  French  and  [the]  Musical  Courier 
Company,  a  corporation,  etc.,  defendants,  of  a  plea  of  trespass  on 
the  case. 

"For  that  the  said  plaintiff  is  a  subject  of  Her  Brittanic  Majesty, 
the  Queen  of  England,  and  the  said  defendant,  Florence  French, 
is  a  citizen  and  resident  of  the  State  of  Illinois,  and  the  said  IMusical 
Courier  Company  is  a  corporation  organized  and  existing  under  and 
by  virtue  of  the  laws  of  the  State  of  New  York,  and  is  a  citizen  and 
resident  of  said  last  named  state. 

"And  for  that  whereas,  the  plaintiff,  from,  to-wit:  the  year  A.  D. 
1872,  until  the  year  A.  D.  1891,  was  continuously  engaged  in  the  city 
of  London,  England,  in  the  practice  of  his  profession  as  a  teacher 
of  the  art  of  singing,  and  the  plaintiff  did,  during  said  period  and 
until  the  plaintiff  removed  from  said  city  of  London,  have  as  pupils, 

GoPenry  v.  Dozier,  161  Ala.  292,  49  South.  909  (1909)  semble;  McLaughlin 
V.  Schnellbacher,  G5  111.  App.  50  (1895)  ;  Sproul  v.  Pillsbury,  72  Me.  20  (ISSO) 
semble ;  Watts  v.  Greenlee,  13  N.  C.  115  (1829) ;  Wilcox  v.  Moon,  63  Vt.  4S1, 
22  Atl.  SO  (1891) ;    Sun  Co.  v.  Bailey,  101  Va.  443,  44  S.  E.  692  (1903).  Accord. 

An.y  other  words  signifying  publication  are  sufficient  to  allege  that  the 
utterance  was  heard  or  read  by  third  parties.  Taylor  v.  How,  Cro.  Eliz.  861 
(1601:  "palam,"  "publice") ;  Baldwin  v.  Elphinstoue,  2  W.  Bl.  *1037  (1775: 
printed);  Brown  v.  Brashier,  2  Pen.  &  W.  (Pa.)  114  (1830:  "in  presence  of" 
third  persons).  Accord.  Sproul  v.  Pillsbury,  72  Me.  20  (ISSO:  printed). 
Contra.     See  further  13  PI.  &  Pr.  43. 

The  publication  need  not  be  alleged  to  have  been  made  to  "good  and 
worthy  citizens."  Burbank  v.  Horn,  39  Me.  233  (185.5).  Tlie  names  of  the 
persons  to  whom  publication  was  made  need  not  be  given.  Ware  v.  Cart- 
ledge,  24  Ala.  622,  60  Am.  Dec.  489  (1854).  If  stated,  publication  to  others 
may  be  proved  without  a  variance.  Penry  v.  Dozier.  161  Ala.  292,  49  South. 
909  (1909);  Goodrich  v.  Warner,  21  Conn.  432  (1852);  Bradshaw  v.  Perdue, 
12  Ga.  510  (1853)  ;  Richardson  v.  Hopkins,  7  Blackf.  (Ind.)  116  (1844).  Accord. 
Chapin  v.  White,  102  Mass.  139  (1869 :  but  compare  Downs  v.  Hawley,  112 
Mass.  237   [1873]).  Contra. 


Ch.  3)  CASE  145 

studying  the  art  of  singing,  under  the  direction  of  the  plaintiflf,  a 
large  number  of  women  and  girls. 

"And  for  that  whereas,  the  plaintiff,  from,  to-wit:  the  month  of 
October,  A.  D.  1891,  to  the  present  time,  has  been  continuously,  and 
now  is  engaged  in  the  practice  of  his  profession,  as  a  teacher  in  the 
art  of  singing,  in  the  city  of  Chicago,  in  the  State  of  Illinois,  and 
the  plaintiff,  during  the  said  period  last  aforesaid,  has  had,  and  now 
has,  as  pupils  studying  the  art  of  singing,  under  the  direction  of  the 
plaintiff,  a  large  number  of  women  and  girls. 

"And  for  that  whereas  the  plaintiff,  before,  and  at  the  time  of, 
the  committing  by  the  defendants,  of  the  several  grievances  herein- 
after mentioned,  was  a  person  of  good  name,  credit  and  reputation, 
and  deservedly  enjoyed  the  esteem  and  good  opinion  of  persons  seek- 
ing instruction  in  the  art  of  singing  and  of  his  neighbors  and  other 
worthy  citizens  of  this  state;  yet  the  defendants,  well  knowing  the 
premises,  but  wickedly  and  maliciously  intending  to  injure  the  plaintiff 
and  to  bring  him  into  public  scandal  and  disgrace,  on  to^wit:  the 
eighth  day  of  September,  A.  D.  1897,  at,  to-wit:  the  District  and 
Division  aforesaid,  wickedly  and  maliciously  did  compose  and  publish 
and  cause  to  be  composed  and  published  of  and  concerning  the  plain- 
tiff in  a  certain  newspaper,  called  the  Musical  Courier,  whereof  the 
defendant,  Florence  French,  was  then  and  there  the  reporter  and 
correspondent,  and  whereof  the  defendant,  INIusical  Courier  Company, 
was  then  and  there  the  publisher  and  proprietor,  a  certain  false  scan- 
dalous, malicious,  defamatory  and  libelous  article  containing  (among 
other  things)  the  false,  scandalous,  malicious,  defamatory  and  libel- 
ous matter  following,  of  and  concerning  the  plaintiff,  that  is  to  say : 

"  'Curiosity  led  me  (meaning  the  defendant,  the  said  Florence 
French,)  to  peruse  the  pamphlet  entitled  'Some  Remarks  on  the 
Voice'  (meaning  a  lecture  delivered  by  the  plaintiff  and  published 
by  the  plaintiff  in  pamphlet  form).  It  is  merely  a  reproduction  of 
the  salient  points  of  a  lecture  given  at  the  Illinois  Music  Teachers' 
Convention.  The  remarks  are  such  as  [are]  found  in  any  ordinary 
publication  treating  of  singing  and  appear  to  be  copied  verbatim. 
The  only  raison  d'etre  for  this  pamphlet  is  evidently  the  opportunity 
it  offers  for  a  vile  gratuitous  insult  and  wholesale  abuse  of  a  very 
estimable,  conscientious,  talented  teacher,  who  is  no  disciple  of  quack- 
ism — Mr.  Karleton  Hackett  (meaning  and  intending  thereby  to  im- 
ply and  charge  that  the  plaintiff  was,  and  is,  a  disciple  of  quackism.) 

"  'This  well-known  teacher  happens  to  enjoy  the  respect  and  es- 
teem of  those  who  understand  honesty  and  scrupulousness  (meaning 
and  intending  thereby  to  charge  and  imply  that  the  plaintiff  does 
not  understand  honesty  and  scrupulousness)  ;  moreover  he,  (mean- 
ing Mr.  Karleton  Hackett)  is  a  gentleman,  a  state  of  being  which 
it  is  possible  the  author  (meaning  the  plaintiff)  of  the  voice  remarks 
cannot  appreciate  (meaning  and  intending  thereby  to  charge  that  the 
WniT.C.L.PL.— 10 


146  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

plaintiff  was  not,  and  is  not,  capable  of  conducting  himself  in  a  polite 
and  gentlemanly  manner  and  that  the  plaintiff  did  not,  and  does  not, 
conduct  himself  in  a  polite  and  gentlemanly  manner  and  that  the 
plaintiff  was  not,  and  is  not,  capable  of  conducting  himself  with  pro- 
priety and  that  the  plaintiff  did  not,  and  does  not,  conduct  himself 
with  propriety).  I  (meaning  the  said  Florence  French)  notice  that 
in  the  preface  of  this  pamphlet  (meaning  the  pamphlet  so  published 
by  the  plaintiff  as  aforesaid)  that  this  erstwhile  teacher  (meaning 
the  plaintiff)  at  a  famous  London  School  (meaning  the  Royal  Acad- 
emy of  Music)  says  he  (meaning  the  plaintiff)  has  'found  it  very 
necessary  to  modify  one's  European  notions  as  to  the  relations  ex- 
isting between  masters — no,  teachers  and  pupils.  This  remark  (mean- 
ing "he  has  found  it  very  necessary  to  modify  one's  European  no- 
tions as  to  the  relations  existing  between  masters — no,  teachers  and 
pupils")  may  be  indorsed  with  the  remark  that  this  discovery  is 
very  beneficial  for  the  pupils.  Possibly  had  the  discovery  been  made 
earlier  Chicago  would  now  possess  one  singing  teacher  the  less  and 
London  one  singing  teacher  the  more,'  (meaning  and  intending  thereby 
to  charge  that  the  plaintiff's  conduct  towards  his  pupils  during  the 
plaintiff's  professional  labors,  as  teacher  of  the  art  of  singing  in 
the  city  of  London,  England,  as  aforesaid,  was  improper  and  immoral, 
and  meaning  and  intending  thereby  to  charge  that  the  plaintiff's 
relations  to  his  pupils  during  the  plaintiff's  professional  labors  as 
teacher  of  the  art  of  singing  in  the  said  city  of  London  as  aforesaid, 
were  improper  and  immoral,  and  meaning  and  intending  thereby  to 
charge  that  the  plaintiff's  conduct  towards  his  said  pupils  and  that 
the  plaintiff's  relations  to  and  with  his  said  pupils  during  the  plain- 
tiff's professional  labors,  as  teacher  of  the  art  of  singing  in  the  city 
of  London  as  aforesaid,  were  so  improper  and  immoral,  that  it  be- 
came, and  was  necessary  for  the  plaintiff,  by  reason  of  said  alleged 
improper  and  immoral  conduct  and  relations  as  aforesaid,  to  abandon 
his  professional  labors  as  such  teacher  aforesaid  in  the  city  of  London 
aforesaid,  and  to  leave  and  go  away  from  said  city  of  London). 

"By  means  whereof  and  the  committing  of  which  said  several  griev- 
ances by  the  defendants  the  plaintiff  has  been,  and  is,  greatly  in- 
jured in  his  good  name  and  reputation  and  brought  into  public  scandal 
and  disgrace  and  has  been,  and  is  otherwise  injured,  to  the  damage 
of  the  plaintiff  of  ten  thousand   ($10,000)   dollars. 

"Therefore  he  brings  his  suit,"  etc. 

To  this  declaration  the  defendants  in  error  filed  a  general  demurrer, 
which  demurrer  was,  by  the  circuit  court,  sustained ;  and  upon  this 
action  of  the  circuit  court,  sustaining  the  demurrer,  the  error  relied 
upon  to  reverse  the  case  is  predicated. 

Before  Woods  and  Grosscup,  Circuit  Judges,  and  Bunn,  District 
Judge. 

After  the  foregoing  statement  of  the  case,  Grosscup,  Circuit  Judge, 
delivered  the  opinion  of  the  court,  as  follows : 


li 


Ch.  3)  CASE  147 

The  gravamen  of  an  action  for  libel  is  not  injury  to  the  plaintiff's 
feelings,  but  damage  to  his  reputation  in  the  eyes  of  others.  It  is 
not  sufficient,  therefore,  that  the  plaintiff  should  understand  himself 
to  be  referred  to  in  the  article.  It  is  necessary,  to  constitute  libel, 
that  others  than  the  plaintiff  should  be  in  a  position  to  understand  that 
the  plaintiff  is  the  person  referred  to. 

The  article  upon  which  the  action  in  the  court  below  was  based, 
stripped  of  innuendos,  and  of  averments  in  the  way  of  inducement, 
is  as  follows : 

"Curiosity  led  me  to  peruse  the  pamphlet  entitled  'Some  Remarks 
on  the  Voice.'  It  is  merely  a  reproduction  of  the  salient  points  of  a 
lecture  given  at  the  Illinois  Music  Teachers'  Convention.  The  re- 
marks are  such  as  [are]  found  in  any  ordinary  publication  treating 
of  singing,  and  appear  to  be  copied  verbatim.  The  only  raison  d'etre 
for  this  pamphlet  is  evidently  the  opportunity  it  offers  for  a  vile, 
gratuitous  insult,  and  wholesale  abuse  of  a  very  estimable,  conscien- 
tious, talented  teacher,  who  is  no  disciple  of  quackism,  Mr.  Karleton 
Hackett. 

"This  well-known  teacher  happens  to  enjoy  the  respect  and  esteem 
of  those  who  understand  honesty  and  scrupulousness ;  moreover,  he 
is  a  gentleman,  a  state  of  being  which  it  is  possible  the  author  of  the 
'Voice  Remarks'  cannot  appreciate.  I  notice  that  in  the  preface  to 
this  pamphlet  this  erstwhile  teacher  at  a  famous  London  school, 
says  he  has  'found  it  very  necessary  to  modify  one's  European  no- 
tions as  to  the  relations  existing  between  masters — no,  teachers  and 
pupils.'  This  remark  may  be  indorsed  with  the  remark  that  the  dis- 
covery is  very  beneficial  for  the  pupils.  Possibly  had  the  discovery 
been  made  earlier,  Chicago  would  possess  one  singing  teacher  the  less 
and   London  one  singing  teacher  the  more." 

The  article  in  these  words,  and  in  these  words  alone,  went  to  the 
readers  of  the  Musical  Courier.  It  contains  in  itself  no  guide  to 
the  identity  of  the  person  spoken  of,  except  that,  whoever  he  was, 
he  was  the  author  of  the  pamphlet  named;  and  the  inference  deriva- 
ble from  the  statement  that  the  pamphlet  is  a  reproduction  of  a 
lecture  given  at  the  Illinois  Music  Teachers'  Association ;  and  that 
its  author  was  formerly  a  teacher  in  a  famous  London  school,  and 
is  now  a  teacher  of  singing  in  Chicago. 

It  is  averred  in  the  inducement  that  the  plaintiff  was  formerly  a 
teacher  in  a  London  school,  and  is  now  a  teacher  of  singing  in  Chi- 
cago ;  but  this  alone  is  not  sufficient  to  identify  the  plaintiff  with  the 
person  spoken  of,  for  in  a  city  of  the  size  of  Chicago  there,  may  be 
many  singing  masters  who  formerly  were  teachers  in  London  schools. 

No   facts  are  averred   disclosing^  that  any  reader  of  the  Courier 
h£T^ver  heafd"^T  the  pamphlet,  or  of  tlie  Jecture^  or  that  any  one^ 
~lioi  even  itijpubllsliers^knew  that  tlie  plaintiff  was  the.  auBiDr.  of  _tlie_ 
__pamphlet.  ^ndeed,  it  is  not_averred  that  the  plaintiff  was  the  authorof 
U2ejDanTplilet^_JPhe_articl^^  furnishes  no  knowledge  that  may 


148  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

be  said,  either  directly  or  by_reasonable_inference,  to  lead  up  to  the 
'Tdehtification  of  the  plaintiff  with  the  person  spoken~or  in  the  article ; 
"and  The  declaration  contains  no  averment  oncno^wledge7"extrinsic  to 
the  article,  that  may,  with  reasonable  certainty,  connect  the  article 
with  the  plaintiff.  For  all  that  appears  on  the  face  of  the  declaration, 
the  readers  of  the  article  in  the  Courier  may  each  and  all,  have  rea- 
sonably supposed  that  the  article  referred  to  some  one  other  than 
the  plaintiff. 

It  is  true  that  the  declaration  avers  that  the  defamatory  language 
was  used  of  and  concerning  the  plaintiff,  but,  as  has  already  been 
said,  it  is  not  enough,  to  constitute  libel,  that  the  plainiff  knew  that 
he  was  the  subject  of  the  article,  or  that  the  defendants  knew  of  whom 
they  were  writing;  it_must  appear  upon  the  face  nf  the  deHaratinn 
that  persons  other  than  jthese  must  have  reasonablv_Lmderstood  that 
fhe  articieTwas_wjrLtten_  of  and  concerning  the  4ilainliff^_aJid^„tliaJLJth 
''so^^ailed  Hbdqus  expressions  related  to  him^^ 

It  is  true,  also,  that  in  an  innuendo  it  is  stated  inferentially  that 
the  pamphlet  was  originally  a  lecture  delivered  by  the  plaintiff,  and 
by  him  published  in  pamphlet  form ;  but  an  averment  of  fact  ex- 
trinsic to  the  article,  and  essential  to  an  identification  of  the  article 
with  the  person  complaining,  cannot  be  embodied  in  an  innuendo.  13 
Enc.  PL  &  Prac.  54. 

The  office  of  an  innuendo  is  to  deduce  inferences  from  premises 

__ai rea3y~~sf ated; ;  not  to  state  the  premises  thenfselvesi     AiTliffiuendo 

is  not  an  issuable  averment.     Facts  extrinsic  to' tHe  article,  an^es- 

'     sential  to~a  reasonable  identification  of  the  plaintiff  with  the  person 

referred  to,  must  be  set  out  in  the  inducement.    Id.  52;   McLaughlin 

v.  Fisher,  136.111.  111-116,  24  N.  E.  60. 

Let  this  whole  article  be  read  without  knowledge  that  the  plain- 
tiff was  the  author  of  the  pamphlet,  or  without  knowledge  of  the  facts 
reasonably  connecting  the  plaintiff  with  the  authorship  of  the  pamph- 
let, and  no  one  would  know  that  the  plaintiff  was  the  person  referred 
to  in  the  article.  This  want  of  information,  in  the  absence  of  the 
essential  introductory  averment,  must  be  assumed  to  have  been  the 
state  of  mind  of  the  readers  of  the  article. 

For  these  reasons,  we  see  no  error  in  the  ruling  of  the  Circuit  Court 
sustaining  the  demurrer,  and  it  is,  therefore,  affirmed.*^ 

61  GoMsborouffh  v.  Orem,  103  Md.  671,  6S2,  64  Atl.  36  (1906)  semble;  Miller 
V.  Maxwell,  16  Wend.  (N.  Y.)  9  (1836).  Accord. 

If  the  language  is  foreign,  it  must  be  alleged  that  the  persons  to  whom 
published  understood  the  foreign  language.  Price  v.  Jenkings,  Cro.  Eliz. 
865  (1601);  Rich  v.  Scalio,  115  111.  App.  166  (1904)  semble;  Wormouth  v. 
Cramer,  3  Wend.  (N.  Y.)  394  (1829)  semble;  Zeig  v.  Ort,  3  Pin.  (Wis.)  30 
(1S50).  Accord.  Newton  v.  Stubbs.  2  Shower,  *435  (1685).  Contra.  But  if 
the  foreign  words  are  spoken  in  a  community  inhabited  by  that  nationality, 
then  an  allegation  that  the  hearers  understood  the  language  is  unnecessary. 
Bechtell  v.  Shatler,  Wright  (Ohio)  107  (1832).  Accord.  Price  v.  Jenkings,  Cro. 
Kliz.  865  (1601).  Contra. 


I 


Ch.  3)  CASE  U9 

MILLIGAN  V.  THORN. 

(Supreme  Court  of  New  York,  1831.     6  Wend.  412.) 

Demurrer  to  declaration.  The  action  is  slander.  The  declaration, 
after  stating  by  way  of  inducement  that  the  plaintiff  is  a  son  of 
James  Milligan,  of,  &c.,  who  has  several  other  sons,  brothers  of  the 
plaintiff,  charges  the  defendant,  in  a  single  count,  with  saying,  in 
a  discourse  he  had  with  the  plaintiff's  father,  in  the  presence  and 
hearing  of  divers  good  and  worthy  citizens :  "You  have  brought 
up  your  sons  to  break  open  letters  and  take  out  money;  they  (mean- 
ing the  plaintiff  and  the  other  sons  of  J.  Milligan)  have  done  it,  and 
I' know  who  paid  for  it.  You  have  allowed  your  sons  to  break  open 
letters,  and  take  money  out  of  them ;  they  have  broken  open  letters, 
and  taken  money  out  of  them.  You  have  brought  up  your  sons  to 
break  open  letters  and  steal  money  out  of  them ;  they  have  broken 
open  letters  and  stolen  money  out -of  them."  The  defendant  demurs, 
and  assigns  for  cause  specially,  that  the  declaration  is  double,  the 
count  containing  two  or  more  sets  of  pretended  actionable  words 
or  causes  of  action,  and  that  it  is  informal,  &c. 

By  the  court.  Savage,  C.  J.  Different  sets  of  words  importing 
the  same  charge,  laid  as  spoken  at  the  same  time,  may  be  included 
in  the  same  count,  and  the  count  for  that  cause  is  not  bad  Rathbun 
V.  Emigh,  6  Wend.  407. 

It  is  however  insisted  that  the  declaration  is  bad  for  want  of  a 
colloquium.  In  Hawkes  v.  Hawkey,  8  East,  431,  Lord  Ellenborough 
says  the  rule  laid  down  in  the  book  is  this :  "Where  the  words  spoken 
do  not  in  themselves  naturally  convey  the  meaning  imputed  by  the 
innuendo,  but  also  where  they  are  ambiguous  and  equivocal,  and  re- 
quire explanation  by  reference  to  some  extrinsic  matter  to  n-vake 
them  actionable,  it  must  not  only  be  predicated  that  such  matter 
existed,  but  also  that  the  words  were  spoken  of  and  concerning  that 
matter."  This  rule  is  found  in  Cowp.  682,  and  Salk.  694.  In  Van 
Vechten  v.  Hopkins,  5  Johns.  220,  4  Am.  Dec.  339,  Van  Ness,  Jus- 
tice, explains  the  meaning  of  an  averment,  of  a  colloquium,  and  of  an 
innuendo.  An  averment  is  to  ascertain  that  to  the  court  which  is 
doubtfully  expressed,  and  to  add  matter  to  make  doubtful  things 
clear;  a  colloquium  shows  that  the  words  were  spoken  in  reference 
to  the  matter  of  the  averment;  and  an  innuendo  is  explanatory  of 
the  subject  matter  sufficiently  expressed  before.  Where  the  words 
are_jiot  at  all  doubtful,  and  convey  a  direct  charge  of^anToffence; 
_or  are  otherwise  actionable  in  themselves,  no  colloqiiiunLls  necessaryj_ 
^ut  where  extrinsic  matter  must  be  brought  irutD._inake.ihe^  words 
actionable,  a  foundation  jmist  be  laid  in  the  recitals,  by  wa^^^of_co];_ 
ToquTum^or  averment.  I  will  take  this^case  by  way  of  example.  The 
plamtrfT' complains  tHaT  he  has  been  slandered.  He  is  not  named 
in  the  slanderous  words.     An  innuendo  cannot  refer  to  anything  not 


150  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

previously  expressed.  The  plaintiffs  must  therefore  state  a  collo- 
quium: That  a  conversation  was  had  of  and  concerning  him,  or 
of  and  concerning  the  sons  of  J.  Milligan.  Without  this,  there  is 
nothing  expressed  to  which  the  innuendo  can  refer,  when  the  plaintiff 
says  that  he  was  intended.  In  Stafford  v.  Green,  1  Johns.  505,  the 
charge  was  false  swearing  in  a  justice's  court.  There  was  no  collo- 
quium about  a  trial  in  that  court,  but  there  was  an  innuendo.  The 
court  held  that  the  want  of  a  colloquium  was  not  aided  by  the  innu- 
endo, as  that  can  only  explain,  but  not  enlarge  the  meaning  of  words. 
So  in  Thomas  v.  Croswell,  7  Johns.  271,  5  Am.  Dec.  269,  Spencer, 
Justice,  says :  "An  innuendo  cannot  extend  to  enlarge  the  meaning 
of  previous  words,  and  the  matter  to  which  it  alludes  from  the  ante- 
cedent parts  of  the  declaration." 

In  Lindsey  v.  Smith,  7  Johns.  359,  the  count  stated  that  in  a  cer- 
tain discourse  which  the  defendant  had  concerning  the  plaintiff  as  a 
justice,  he  uttered  the  slanderous  words.  It  was  objected  after  ver- 
dict, that  the  colloquium  was  not  of  and  concerning  a  certain  cause 
which  was  referred  to  in  the  slanderous  words ;  but  the  court  held 
the  colloquium  was  sufficient  to  give  point  and  application  to  the  slan- 
der. And  in  Gidney  v.  Blake,  11  Johns.  54,  the  declaration  stated 
that  in  a  certain  discourse  which  the  defendant  had  with  Gidney,  of 
and  concerning  his  children,  the  defendant  charged  his  children  to 
be  thieves.  The  court  held  this  to  be  sufficient ;  that  the  colloquium 
points  the  words,  and  designates  the  plaintiff  as  one  of  the  children 
intended.  In  the  case  now  before  us  there  is  no  such  colloquium, 
about  the  plaintiff,  or  about  the  children  of  James  Milligan.  It  is  that 
the  defendant,  in  a  certain  discourse  which  he  had  with  the  father 
of  the  plaintiff,  in  the  presence  and  hearing  of  divers  good  and 
worthy  citizens,  uttered  the  slanderous  words,  "You  have  brought 
up  your  children  to  break  open  letters,"  &c.  And  when  the  plaintiff 
states  the  innuendo  (meaning  the  plaintiff),  there  is  nothing  in  the 
antecedent  part  of  the  declaration  to  which  the  innuendo  can  point; 
there  has  teen  nothing  ambiguous  expressed  which  the  innuendo 
can  explain.  The  innuendo  undertakes  not  to  explain  the  terms,  but 
to  enlarge  them.  The  count  is  therefore  defective  for  want  of  a 
colloquium,  and  because  the  innuendo  purports  to  enlarge  the  meaning 
of  the  words  by  applying  them  to  matter  not  before  stated. 

The  defendant  is  entitled  to  judgment  on  the  demurrer,  with  leave 
to  the  plaintiff  to  amend  on  payment  of  costs.®^ 

6  2  Maxwell  v.  Allison,  11  Serg.  &  R.  (Pa.)  343  (1824).  Accord.  Brashear 
V.  Shepherd.  Ky.  Dec.  240  (1803) ;  Dow  v.  Long,  190  Mass.  138,  76  N.  E.  067 
(190G).  Contra.  In  Osborn  v.  Forshee,  22  Mich.  209  (1871),  it  was  held  that 
if  the  words  are  in  the  second  person  end  spoken  to  the  plaintiff  and  the  dec- 
laration contains  "of  the  plaintiff"  no  colloquium  is  necessary. 

If  words  on  their  face  refer  to  the  plaintiff  no  inducement  is  necessary. 
Hurley  v.  Publishing  Co.,  i:i8  Mass.  334  (1885);  Young  v.  Cook,  144  Mass.  38, 
10  N.  E.  719  (1887).  Nor  is  a  colloquium  necessary.  Thirman  v.  Matthews 
1  Stew.  (Ala.)  384  (1828)  semble ;    Davis  v.  Davis.  1  Nott.  &  McC.  (S.  C.)  290 


III 


Ch.  3)  CASE  151 

CLEMENT  V.  FISHER. 

(Court  of  King's  Bench,  1827.     7  Barn.  &  C.  459.) 

This  was  a  writ  of  error  from  the  Court  of  Common  Pleas.  The 
first  count  of  the  declaration  stated,  that  on,  &c,  at,  &c.  one  J.  J. 
Stockdale,  falsely,  wickedly,  and  maliciously  did  print  and  publish 
of  and  concerning  the  plaintiff,  a  false,  scandalous,  malicious,  and 
defamatory  libel,  containing,  amongst  other  things,  the  false,  scanda- 
lous, malicious,  defamatory,  and  libellous  matter  following,  of  and 
concerning  the  plaintiff,  that  is  to  say,  &c.  It  then  set  out  the  libel 
published  by  Stockdale,  which  imputed  gross  misconduct  to  the  plain- 
tiff, and  then  stated,  "that  in  Hilary  term  in  the  6  &  7  G.  IV,  the 
plaintiff  below  brought  this  action  against  Stockdale  for  publishing 
that  libel,  and  obtained  a  verdict  and  judgment  for  i700  damages ; 
that  the  defendant  well  knowing  the  premises,  but  contriving,  &c.  to 
injure  the  plaintiff  in  his  good  name,  and  to  cause  it  to  be  believed 
that  the  said  libel  was  true,  heretofore,  to  wit,  on,  &c.  at,  &c.  falsely 
and  maliciously  did  print  and  publish  of  and  concerning  the  plaintiff, 
and  of  and  concerning  the  said  libel,  and  of  and  concerning  the  said 
verdict,  a  certain  false,  scandalous,  malicious,  and  defamatory  libel, 
containing  the  false,  scandalous,  malicious,  defamatory,  and  libellous 
matter  following;  that  is  to  say."  It  then  set  out  the  libel,  upon 
which  no  question  turned.  The  second  count  stated,  "that  the  de- 
fendant further  contriving,  See.  on,  &c.  at,  8zc.  falsely,  wickedly,  and 
maliciously  did  print  and  publish  of  and  concerning  the  said  plaintiff, 
and  of  and  concerning  the  said  first  mentioned  libel,  and  of  and  con- 
cerning the  said  verdict,  a  certain  other  false,  scandalous,  malicious, 
and  defamatory  libel,  containing,  among  other  things,  the  false, 
scandalous,  malicious,  defamatory,  and  libellous  matter  following;  that 
is  to  say."  It  then  set  out  the  libel,  which  purported  to  be  a  dialogue 
between  Stockdale  and  a  person  named   Harriette.     There  was  no 

(1818) ;  2  Williams'  Saunders  Eep.  307a,  notes  1  and  d ;  and  the  cases  just 
cited  as  to  inducement. 

If  the  words  do  not  refer  to  plaintiff  on  their  face  an  inducement  is  nec- 
essary. jMix  V.  Woodward.  12  Conn.  202,  280  (1837)  semble;  Warner  v.  Rail- 
way (C.  C.)  112  Fed.  114  (1001:  Tennessee  law)  semble;  Butler  v.  Publish- 
in:?  Co.,  13.5  Fed.  69,  07  C.  C.  A.  543  (1905:  Florida  law)  semble;  Goldsbor- 
ouRh  V.  Orem,  103  Md.  671,  682,  64  Atl.  36  (1900)  semble;  Tvler  v.  Tillotson, 
2  Hill  (N.  Y.)  507  (1842) ;  Maxwell  v.  Allison,  11  Sere.  &  R.  (Pa.)  343  (1824) ; 
Gordon  v.  Publishing  Co..  81  Vt.  237,  69  Atl.  742  (1908).  Accord.  Miller  v. 
Parish,  8  Pick.  (Mass.)  3.S4  (1829:  colloquium  alone  enough)  ;  Dow  v.  Tx)ng, 
190  Mass.  138,  70  N.  E.  067  (1906 :    "of  the  plaintiff"  alone  enough).  Contra. 

It  has  been  held  that  the  lack  of  such  an  inducement  as  is  required  by 
the  cases  in  the  last  paragraph  is  cured  by  verdict  if  the  words  "of  the 
plaintiff'"  are  in  the  declaration.  Taylor  v.  How,  Cro.  Eliz,  861  (1601) ; 
Smith  V.  Ward,  Cro.  Jac.  674  (1024). 

Obviously  if  it  does  not  in  any  way  appear  that  the  words  referred  to  the 
plaintiff  the  declaration  is  bad.  Hanna  v.  Singer,  97  Me.  128,  53  Atl.  991 
(1902) ;  Sayre  v.  Jewett,  12  Wend.  (N.  Y.)  135  (1834) ;  Cave  v.  Shelor,  2  Muuf. 
(Va.)  193  (1811). 


152  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

innuendo  shewing  that  it  related  to  the  plaintiff,  nor  did  it  appear 
from  the  subject-matter  to  relate  to  him,  nor  did  it  appear  neces- 
sarily to  relate  to  the  libel  in  the  first  count;  but  it  alleged,  that  it 
would  be  hard  to  pay  for  truth,  and  that  all  which  Harriette  had  writ- 
ten was  in  substance  true.  The  defendant  below  pleaded  not  guilty. 
A-t  the  trial  the  jury  found  a  general  verdict  for  the  plaintiff,  with 
thirty  pounds  damages;  and  judgment  having  been  entered  up  for 
the  plaintiff  generally  on  all  the  counts,  the  record  was  removed  into 
this  court  by  writ  of  error,  and  on  a  former  day  in  this  term  the 
case  was  argued  by 

Piatt  for  the  plaintiff  in  error.  The  second  count  is  bad,  and  the 
damages  being  general,  the  judgment  must  be  reversed.  The  second 
count  alleged,  that  the  defendant  "published  of  and  concerning  the 
plaintiff  a  libel  containing  the  false  and  scandalous  matter  following." 
The  libel  was  then  set  out;  hllL-JL^J^-  "'^^  ^"7  wliaj:e-ft44^ged_thaJ:, 
the  matters  in  the  libel  were  of  and  concerning  Jhe  plgrntiff^  nnr  Hirj 
it~appeaT'l3yTh'e'^uEsequent  matter,  nor  was  there  any_innuendo  to 
~ conneCfthFTibellous"  hfatter  with  the  plamtTff!  Now,  although  the 
""defendant  may  have  published  a  libel  concerning  the  plaintiff,  it  does 
not  follow  that  the  libel  set  out  was  concerning  the  plaintiff.  That 
ought  to  appear  either  by  averment  or  from  the  libel  itself.  He 
cited  Rex  v.  Marsden,  4  M,  &  S.  164 ;  The  King  v.  Alderton,  Sayer, 
280;  Johnson  v.  Aylmer,  Cro.  Jac.  126;  Lowfield  v.  Bancroft, 
Strange,  934;  The  King  v.  Horne,  Cowp.  682;  Hawkes  v.  Hawkey, 
8  East,  427 ;  Com.  Digest,  tit.  Action  upon  the  Case  for  Defamation, 
G.  7. 

Manning  contra.  The  declaration  states  that  the  defendant  pub- 
lished the  libel  of  and  concerning  the  plaintiff.  In  Rex  v.  Marsden, 
it  was  not  alleged  that  the  libel  was  published  of  and  concerning 
the  plaintiff.  The  count  might  have  been  bad  on  special  demurrer, 
for  not  stating  that  the  libellous  matter  was  of  and  concerning  the 
plaintiff,  but  is  good  after  verdict,  for  the  plaintiff  could  not  have 
recovered  a  verdict  unless  it  had  been  proved  at  the  trial  that  the 
libel  did  relate  to  him.  Stennel  v.  Hogg,  1  Saund.  226 ;  Skinner  v. 
Gunton,  1  Saund.  22Sc. 

Cur.  adv.  vult. 

Lord  Tenterde;n,  C.  J.  We  are  of  opinion  that  the  second  count 
is  bad.  The  first  count  of  the  declaration  states,  that  the  plaintiff 
had  brought  an  action  against  one  Stockdale  for  a  libel,  and  obtained 
a  verdict  against  him,  and  that  the  defendant  contriving,  &c.  to  injure 
the  plaintiff,  and  to  cause  it  to  be  believed  that  the  libel  was  true 
published  of  and  concerning  the  plaintiff  a  libel,  which  is  set  forth  in 
that  count.  Upon  that  no  question  arises.  The  second  count  then  pro- 
ceeds thus:  "The  plaintiff  further  saith,  that  the  defendant,  further 
contriving  and  intending  as  aforesaid,  heretofore,  to  wit,  on,  &c.  falsely, 
&c.  did  print  and  publish  of  and  concerning  the  plaintiff,  and  of 
■and  concerning  said  first  mentioned  libel,  and  of  and  concerning  the 


i 


Ch.  3)  CASE  153 

said  verdict,  a  certain  other  false,  scandalous,  malicious,  and  defama- 
tory libel,  containing,  among  other  things,  the  false,  scandalous,  ma- 
licious, defamatory,  and  libellous  matter  following;  that  is  *o  say," 
without  alleging  that  the  particular  defamatory  matter  which  was 
afterwards  set  out  was  matter  of  and  concerning  the  plaintiff,  Such 
an  allegation  would  not  have  been  necessary  if  there  had  been  in 
the  libel  set  out  anything  which  clearly  applied  to  the  plaintiff,  or 
any  distinct  innuendo  so  applying  the  libellous  matter,  or  if,  upon 
the  perusal  of  the  matter  set  out,  it  had  manifestly  appeared  that 
it  related  to  the  libel  in  respect  of  which  the  plaintiff  had  recovered 
damages.  But  looking  at  the  libellous  matter  set  out  in  this  count, 
we  find  the  initial  letters  of  Mr.  Stockdale's  name,  and  the  name 
of  Harriette,  and  the  libel  alleges  that  it  would  be  hard  to  pay  for 
truth,  and  that  all  that  which  Harriette  had  written  was  in  substance 
true.  Now,  upon  reading  that  matter,  it  seems  to  me  quite  impossi- 
ble to  say  that  it  has  any  relation  to  the  plaintiff  or  to  the  former 
libel.  There  is  no  averment  that  the  particular  matter  is  of  and 
concerning  the  plaintiff,  or  any  innuendo  shewing  that  it  related  to 
the  plaintiff,  or  anything  in  the  matter  itself  manifestly  shewing  that 
it  does  relate  to  him.  We  are,  therefore,  of  opinion,  that  the  count 
is  not  good.  The  consequence  is,  that  the  judgment  must  be  reversed, 
and  a  venire  de  novo  awarded. 

Judgment  of  the  Court  of  Common  Pleas  reversed,  and  a  venire 
de  novo  awarded.®^ 


COLEMAN  V.  SOUTHWICK. 

(Supreme  Court  of  New  York,  1812.     9  Johns.  45,  6  Am.  Dec.  253.) 

This  was  an  action  for  a  libel.  The  declaration  stated  that  the 
plaintiff  was  a  good  and  faithful  citizen  of  the  United  States,  and  of 
good  fame,  etc.,  and  pursued  the  occupation  and  employment  of  editor 
of  a  certain  newspaper  printed  and  published  in  the  city  of  New  York, 
called  the  "New  York  Evening  Post,"  by  which  he  acquired  great 
gains  and  emoluments,  etc.  Nevertheless,  the  defendant  well  know- 
ing the  premises,  but  contriving  and  maliciously  intending  to  injure 
and  aggrieve  the  plaintiff  in  his  good  name,  etc.,  and  also  in  his 
occupation  and  employment,  and  to  bring  him  into  great  scandal, 
infamy,  and  disgrace,  and  to  cause  it  to  be  believed,  etc.,  that  the 
plaintiff  had  been  guilty  of  the  crime  of  treason,  and  of  the  promul- 

6  8  Lowfield  V.  Bancroft,  Strange,  934  (1732:  possibly  accord,  though  seems 
that  words  "of  the  plaintiff"  were  left  out). 

The  allegation  that  the  words  were  published  "of  the  plaintiff"  Is  essen- 
tial. Johnson  v.  Aylmer,  Cro.  Jac.  120  (KtOG);  Lowfield  v.  Bancroft,  Strange, 
934  (1732)  ;  Brashear  v.  Shepherd,  Ky.  Dec.  249  (180S)  semble ;  Dow  v.  Long, 
190  Mass.  138,  76  N.  E.  667  (1906)  semble ;  Titus  v.  Follet,  2  Hill  (N.  Y.)  318 
(1842) ;  1  Williams'  Saunders  Rep.  242  b,  note  3 ;  1  Chitty,  Pleading  (13th 
Am.  Ed.)  ♦404.  Accord. 


154  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

gation  of  treasonable  sentiments,  and  that  the  plaintiff  had  attempted 
to  excite  a  civil  war,  etc.,  and  was  under  the  influence  of  an  unprin- 
cipled devotion  to  Great  Britain,  etc.,  on  the  3d  October,  1809,  at  the 
city  of  Albany,  wrote  and  published  in  a  newspaper,  printed  and  pub- 
lished by  the  defendant,  called  "The  Albany  Register,"  a  certain  false, 
scandalous  and  malicious  libel,  containing,  among  other  things,  the 
false,  scandalous  and  malicious  words  and  matters  following.  (Here 
the  whole  publication  was  set  forth  with  innuendoes,  but  it  is  un- 
necessary, in  reference  to  the  decision  of  the  court,  to  set  forth  the 
libellous  paper  and  the  other  papers  read  at  the  trial,  and  inserted 
in  the  case.)      *     *     * 

The  jury  found  a  verdict  for  the  plaintiff,  for  1,500  dollars  dam- 
ages.    *     *     * 

Kent,   C.  J.^*     The  defendant  moved  for  a  new  trial  upon  the 

following  grounds : 

1.  That  the  plaintiff  ought  to  have  been  nonsuited  at  the  trial. 
*     *     * 

The  declaration  states,  by  way  of  inducement  to  the  libel,  that  the 
defendant  maliciously  intending  to  bring  the  plaintiff  into  public 
scandal,  and  to  cause  it  to  be  believed  that  he  had  been  guilty  of  trea- 
son, and  of  promulgating  treasonable  sentiments,  etc.,  published  the 
libel.  The  counsel  stated  that  these  were  averments  requisite  to  have 
been  proved  upon  the  trial,  and  that  for  want  of  showing  the  ex- 
istence of  the  charge  of  treason,  the  plaintiff  ought  to  have  been 
nonsuited,  ^he  ajTSwejiJs^.lIiat-they^re_not^  such_ay£rments,  but  sug- 
gestions  stated  aj  mere  inducement to_ the  libel^  It  was  not  travers- 
^ble"~matter~^ny  more  than  the  ordinary  preliminary^ suggestionsln 
XaT'declaration  iF^slaiidef^r^iatrlhe^^pfejW  nameT^Tame, 

' — ^ic.  The'^erments  requisite  to  give_nTeaning  and  applFcation  to  the 
libel,' "must  be  pmY£dijmd^^_ere  provedjn  this  ca^eT^^he  meaning  of 
'  the  libel  and  its  application  to  the  plaintiff  were  apparent  on  the 
face  of  the  paper,  and  all  that  was  required  to  support  that  meaning 
and  that  application,  was  the  production  of  the  paper,  and  the  proof 
of  its  publication.  The  meaning  imputed  to  it  in  the  declaration, 
when  the  true  meaning  of  the  libel,  and  not  the  mere  inducement  to 
it,  is  averred,  was  obvious  from  the  paper  itself.     *     *     * 

I  am  accordingly  of  opinion  that  the  motion,  on  the  part  of  the 
defendant,  be  denied. 

Motion  denied. ^^ 

8  4  Statement  of  facts  abriclged  and  part  of  opinion  omitted. 

6  5  Thirman  v.  Matthews,  1  Stew.  (Ala.)  384  (1828:  statement  by  coiinseJ 
not  controverted)  not  even  semble;  Wilcox  v.  Moon,  63  Vt.  481.  485,  22  Atl. 
SO  (1891).  Accord.    Cooper  v.  Stone,  24  Wend.  434,  439  (1840)  semble  Contra. 


Ch.  3)  CASE  155 

WEBSTER  et  ux.  v.  HOLMES. 
(Supreme  Court  of  New  Jersey,  1898.     62  N.  J.  Law,  55,  40  Atl.  778.) 

Action  by  Henry  C.  Webster  and  wife  against  James  P.  Holmes. 
Heard  on  demurrer  to  declaration.    Demurrer  sustained. 

Argued  February  term,  1898,  before  Lippincott,  Gummere,  and 
Ludlow,  ]]. 

LiPPiNCOTT,  J.®^  This  action  is  brought  by  husband  and  wife 
against  the  defendant  for  slander  against  the  wife.  The  declaration 
contains  two  counts,  one  in  which  the  alleged  slanderous  matter  is, set 
forth  against  the  wife  with  consequent  damage  to  her.  The  second 
count  is  for  damages  to  the  husband  by  reason  of  such  slanderous  mat- 
ter set  out  in  the  first  count,  against  the  wife,  without  any  statement 
or  repetition  of  such  matter  in  such  count.  The  demurrer  to  the  dec- 
laration in  this  case  is  sought  to  be  sustained  upon  several  grounds : 
First,  that  the  defamatory  words  used  by  the  defendant  concerning 
the  female  plaintiff  are  not  set  forth  in  either  count  of  the  declara- 
tion; and,  secondly,  that  it  is  not  averred  in  either  count  that  the 
words  complained  of  were  falsely  and  maliciously  spoken.  There  are 
other  causes  of  demurrer  assigned,  which  it  has  not  been  found  neces- 
sary to  consider.®^     *     *     * 

The  other  ground  considered  is  that  in  the  narrative  of  the  words 
spoken,  contained  in  the  declaration,  the  slanderous  matter  is  not  al- 
leged to  be  defamatory,  false,  and  malicious.  This  is  equally  effective 
as  a  ground  of  demurrer.  False  defamatory  words  spoken  constitute 
slander,  and  they  are  only  actionable  when  false  and  malicious.  -Itj^ 
necessary,  in  order  that  the  pleading  be  not  demuxrable,  lhatJiQt^nly_ 
*the  wofds~mustbe_set  forth,  but  in  sjjme  form  or  qtjiej^it  must  be  aver- 
red that  they  were^false  and  malicious.    It  mav  not  be  material  tO-lhg, 

sufficienc)^__of_the_declaTatior]^^  falsity ^oi^ialiciousness 

'  'be  statedTbut  it  has  always  been  understood  that  the  declaration  must 
charge  the  falsehoo^^l5r~malicK)usness7Qi^-tlie  slandexausL_wor^s  or 
-igrffls'iTiseH.^  In  some  form  or  other,  these  essentials  of  proper  plead- 
ing must  appear,  and  no  better  averment  than  that  laid  down  in  the 
books  of  pleading  can  be  employed — that  is,  that  the  words  were  de- 
famatory, false,  and  malicious ;  and  no  good  reason  can  be  perceived 
for  departing  from  these  well-recognized  and  established  forms.  Bot- 
tomly  v.  Bottomly,  80  Md.  159,  30  Atl.  706;  White  v.  Nicholls,  3 
How.  266,  11  L.  Ed.  591 ;  12  Am.  &  Eng.  Enc.  Law,  473,  474,  and  cases 
cited.  Malice,  either  in  fact  or  in  law,  is  essential  to  the  action,  and 
consequently  a  corresponding  allegation  is  essential  to  a  complete  dec- 
laration.    This  seems  to  be  the  rule  under  all  the  authorities      With 

88  Part  of  the  opinion  omitted. 

67  The  court  heM  the  declaration  bad  on  the  ground  that  the  words  should 
have  been  alleged. 


156  PLExiDINGS   IN   TOUT   ACTIONS  (Part    1 

the  averment  of  the  falsity  of  the  charge,  malice  may  be  inferred; 
and  so,  too,  under  the  averment  of  malice  the  falsity  of  the  charge  may 
be  inferred.  While  the  plaintiff  is  not  bound  in  terms  to  deny  the  spe- 
cific charge  imputed  to  him,  nor  the  particular  facts  alleged  in  the 
charge,  it  is  necessary  to  aver  that  the  words  were  maliciously  spoken. 
The  averment,  "Hsec  falsa,  ficta,  malitiosa  verba,"  is  required  in  some 
form,  and  this  is  all  that  is  required.  Bendish  v.  Lindsey,  11  Mod.  194, 
There  are  cases  in  which  it  has  been  held  that  the  falsity  of  the  words 
used  need  not  be  charged  in  terms,  but  an  examination  of  these  cases 
will  reveal  that  they  passed  upon  the  ground  that  the  fault  was  cured 
after  verdict,  or  upon  the  ground  that  expressions  or  averments  were 
used  in  the  pleadings  from  which  the  ingredients  of  falsity  and  malice 
could  be  fairly  inferred,  and  thus  the  pleading  was  only  subject  to  the 
criticism  of  being  unadroit  or  untechnical.  Newell,  Sland.  &  L.  p. 
612,  and  cases  cited.  Any  form  of  words  will  suffice  from  which  the 
malicious  intent  can  be  inferred.  It  has  been  held  to  be  sufficient  to 
aver  that  the  defendant  spoke  the  words  or  published  the  libel  falsely 
or  wrongfully,  or  that  the  defendant  "machinas  periorare  dixit." 
Moore,  459  ;  Owen,  51 ;  Noy,  35  ;  Danv.  Abr.  166.  Jhe_averiiieiLli^in__ 
jQine^ionn,, _UTaLthe_ words_w^r^ jpo^  jnalicioiisly,  must_ 

be  contaiiied_in  the  declaration^^Starkie,  Sland.  &  L.  433 ;  Morrison's 
Case,  Slieppard  Act.  267;  Sutton  v.  Johnstone,  1  Term  R.  493.  It 
has  always  been  held  that  there  should  be  an  averment  that  the  defend- 
ant maliciously  published  the  matter,  but  any  equivalent  expression, 
as  wrongfully  and  falsely,  will  suffice.  Saund.  PI.  &  Ev.  242.  The 
presumptions  arising  upon  proof  in  the  trial  of  the  cause  do  not  apply 
to  the  pleading.  The  declaration  in  this  case  is  barren  of  averments 
of  the  necessary  ingredients  of  a  proper  declaration,  and  therefore  on 
both  grounds  demurrable.    The  demurrer  is  sustained,  with  costs. "^^ 

68  As  to  falsitv:  Bendish  v.  Lindsay.  11  Mod.  194  (1709)  semble;  Bromage 
V.  Prosser,  4  B.  &  C.  247.  55  (1825)  semble;  Ivey  v.  Co.,  113  Ala.  349,  360,  21 
Sontli.  531  (1S9G)  semble;  Bottomly  v.  Bottomly,  80  Md.  159, -30  Atl.  706 
(1894) ;  Rice  v.  Albee,  164  Mass.  88,  41  N.  E.  122  (1895) ;  Belknap  v.  Ball.  83 
Mich.  583,  47  N.  W.  674,  11  L.  R.  A.  72,  21  Am.  St.  Rep.  622  (1890) ;  Cooper 
V.  Stone,  24  Wend.  (N.  Y.)  434,  439  (1840)  semble.  Accord.  Anonymous,  Style, 
392  (1652);  Lamplevv  v.  Hewson,  Style,  435  (1654);  King  v.  Burks,  7  D.  &  E. 
4  (1796 :     criminal   case).  Contra. 

As  to  malice :  Ivey  v.  Co.,  113  Ala.  349,  360,  21  South.  531  (1896)  semble ; 
Belknap  v.  Ball,  83  Mich.  583.  47  N.  W.  674,  11  L.  R.  A.  72,  21  Am.  St.  Rep. 
622  (1890);  O'Donaghue  v.  McGovern,  23  Wend,  (N.  Y.)  26,  31  (1840)  semble; 
White  V.  Nicholls,  3  How.  266,  284,  11  L.  Ed.  591  (1845)  semble;  Dillard  v. 
Collins,  25  Grat.  (Va.)  343,  350  (1874)  semble.  Accord.  Mercer  v.  Sparks, 
Noyes,  35  (1586) ;  Bromage  v.  Prosser,  6  Dow.  &  Ry.  303  (1825)  semble ;  King 
V.  Root,  4  Wend.  (N.  Y.)  114,  136,  21  Am.  Dec.  102  (1829)  semble.  Contra. 


Ch.  3)  CASE  157 

DECLARATION  FOR  MALICIOUS  PROSECUTION. 

(Encyclopedia  of  Forms.     Foruis  No.  13,415  and  No.  6,951.) 

Court  of  the  County  of  ,  to  wit,  Rules,  18 — . 

complains  of ,  who  has  been  summoned  to  answer  the 


said  plaintiff  of  a  plea  of  trespass  on  the  case.     For  this,  to  wit,  that 

on  the of ,  18 — ,  at , ,  the  defendant  went 

before  one ,  a  United  States  commissioner  for  the dis- 
trict of ,  and  then  and  there  before  said falsely  and  ma- 
liciously and  without  any  reasonable  or  probable  cause  whatsoever, 
charged  plaintiff  with  having-  feloniously  stolen  or  taken  from  out  of 
a  mail  of  the  United  States  a  certain  registered  letter  received  by  plain- 
tiff as  postmaster  at ,  ,  on  or  about  the  day  of 

,  18 — ,  and  upon  such  charge  the  defendant  falsely  and  mali- 
ciously and  without  any  reasonable  or  probable  cause  whatever, 
caused  and  procured  said ,. United  States  commissioner  as  afore- 
said, to  make  and  grant  his  certain  warrant  under  his  hand  for  the  ap- 
prehending of  plaintiff  and  for  having  plaintiff  before  him,  the  said 

,  or  some  other  United  States  commissioner,  to  be  dealt  with 

according  to  the  law  of  said  supposed  offense,  and  said  defendant,  un- 
der and  by  virtue  of  said  warrant,  afterwards,  to-wit :   ,  18 — , 

at county, ,  aforesaid,  wrongfully  and  unjustly  and  with- 
out any  reasonable  cause  whatsoever,  caused  plaintiff  to  be  arrested  by 
his  body  and  taken  into  custody  and  to  be  imprisoned  and  brought  by 

public  conveyance  from '-, county,  to ,  ,  in 

the  custody  of  a  deputy  marshal  of  the  United  States,  and  before  a 

great  many  people  in  the  public  highway  and  the  streets  of  , 

and  to  be  detained  in  custody  a  long  space  of  time,  to-wit:    

hours  then  next    following  and  until  defendant  afterwards,   to-wit : 

,  IS — ,  at  , ,  falsely  and  maliciously  and  without 

any  reasonable  or  probable  cause  whatsoever,  caused  the  plaintiff  to 
be  carried  in  custody  before  said  ,  so  being  United  States  com- 
missioner as  aforesaid,  to  be  examined  before  said  commissioner,  of 
and  concerning  said  supposed  crime,  which  said  commissioner,  having 
heard  and  considered  all  that  said  defendant  could  say  or  allege  against 
the  plaintiff  touching  said  supposed  offense,  then  and  there,  to-wit : 

on  the  day  last  aforesaid,  at , ,  adjudged  and  determined 

that  the  said  plaintiff  was  not  guilty  of  the  said  supposed  offense,  and 
then  and  there  caused  the  plaintiff  to  be  discharged  out  of  custody, 
fully  acquitted  and  discharged  of  the  said  supposed  offense,  and  the 
defendant  hath  not  further  prosecuted  his  said  complaint,  but  hath 
deserted  and  abandoned  the  same,  and  the  said  complaint  and  prose- 
cution is  wholly  ended  and  determined,   to-wit :    at  ,  , 

aforesaid;  to  the  plaintiff's  damage dollars.    And  therefore  he 

brings  his  suite. 


158  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

FINDLEY  V.  BULLOCK. 
(Supreme  Court  of  ludiana,  1818.     1  Blackf.  467.) 

Appeal  from  the  Clark  Circuit  Court. 

HoLMAN,  J."^  *  *  *  'pj^g  action  is  for  a  malicious  prosecution. 
The  declaration  states  that  the  plaintiff  was  arrested  and  brought  be- 
fore a  justice  of  the  peace  on  a  charge  of  felony,  on  the  29tli  of  July, 
1816 ;  and,  after  being  detained  for  a  space  of  twelve  hours,  was,  on 
the  same  day,  acquitted,  which  was  the  termination  of  the  prosecution 
of  which  the  plaintiff  complained;  and  this  action  was  commenced 
the  same  day.     *     *     * 

The  declaration  states  that  the  charge  was  made  before  "Jo^^" 
Beggs,  Esquire,  then  and  there  being  one  of  the  justices  assigned  to 
keep  the  peace  of,  in  and  for  the  county  aforesaid,  and  also  to  hear 
and  determine  divers  felonies,  trespasses,  and  other  misdemeanors," 
&c.  And  on  the  ground  that  justices  of  the  peace  have  no  such  power 
to  hear  and  determine  divers  felonies,  trespasses,  and  misdemeanors, 
the  defendant  has  assigned  this  part  of  the  declaration  as  a  third  rea- 
son why  the  judgment  should  be  reversed.  It  is  unnecessary  to  inquire 
whether  or  not  such  power  is  attached  to  the  office  of  the  justice  of  the 
peace,  for  John  Beggs  is  sufficiently  described  as  a  justice  of  the  peace, 
without  those  expressions.  They  are  merely  surplusage,  and  the  dec- 
laration would  be  unexceptionable  in  this  part  of  it,  if  they  were 
stricken  out.     *     *     * 

P£;r  Curiam.  The  judgment  is  affirmed,  with  5  per  cent,  damages 
and  costs. '^** 


PIPPET  V.  HEARN. 

(Court  of  King's  Bench,  1822.     5  Barn.  &  Aid.  634.) 

Action  on  the  case  for  a  malicious  prosecution  for  perjury.  The 
declaration  contained  two  counts,  the  first  of  which  set  out  the  indict- 
ment for  perjury,  which  had  been  preferred  against  the  defendant 
[plaintiff?]  ;  by  which  it  appeared,  that  a  certain  cause  had  been  de- 
pending in  the  King's  Bench,  between  Bridges  and  Hearn,  and  that 
such  proceedings  were  had  that  a  writ  of  enquiry  was  duly  issued  out 
of  the  said  court,  directed  to  the  sheriffs  of  London,  to  enquire,  &c., 
and  that  the  said  sheriffs  should  make  appear  the  inquisition  which 
they  should  take  thereof,  before  the  justices  of  our  said  lord  the  king, 
at  Westminster.     The  indictment  then  set  out  the  taking  of  the  in- 

6  9  Part  of  the  opinion  omitted. 

7  0  It  must  appear  that  proceedings  were  had  in  a  judicial  tribunal.  Sliep- 
pard  V.  Furniss,  19  Ahi.  TOO  (1851);  Hasliins  v.  Ralston,  GO  Mich.  ()3.  37  N. 
W.  45,  13  Am.  St.  Rep.  376  (1888)  semble ;    Drew  v.  Potter,  3!)  Vt.  IS!)  (1867). 


Ch.  3)  CASE  159 

quisition  before  the  Secondary,  and  alleged  the  perjury  of  the  plaintiff, 
as  having  been  committed  on  that  occasion. 

The  second  count  of  the  declaration  did  not  set  out  any  indictment, 
but  merely  stated,  that  defendant,  at  a  general  session  of  oyer  and  ter- 
miner of  our  said  lord  the  king,  holden  for  the  city  of  London,  at  the 
Justicehall,  in  the  Old  Bailey,  within  the  parish  of,  &c.,  maliciously, 
and  without  any  reasonable  or  probable  cause  whatsoever,  indicted  and 
caused,  and  procured  to  be  indicted,  the  said  plaintiff,  for  wilful  and 
corrupt  perjury,  &c.  Plea,  general  issue.  At  tiie  trial,  at  the  last 
Guildhall  sittings,  before  Abbott,  C.  J.,  the  plaintiff  obtained  a  verdict, 
damages  £  150.    And  now, 

Piatt  moved  to  arrest  the  judgment.  Both  counts  are  defective.  By 
the  first  it  appears,  that  the  alleged  perjury  was  committed  coram  non 
judice;  for  the  writ  of  enquiry  was  issued  out  of  the  King's  Bench, 
and  made  returnable  in  the  Common  Pleas.  The  Secondary  had,  there- 
fore, no  jurisdiction  to  administer  the  oath.  The  second  count  is  too 
general.  The  indictment  must  be-  set  out,  and  here  it  is  only  stated, 
that  the  defendant  maliciously  indicted  the  plaintiff*  for  wilful  and  cor- 
rupt perjury.  In  Com.  Dig.  tit.  Action  on  the  case  for  a  conspiracy, 
C.  4.,  it  is  laid  down,  that  the  declaration  must  shew  a  good  indictment, 
otherwise  he  cannot  be  lawfully  acquitted;  and  Sherington  v.  Ward, 
Cro.  Eliz.  724,  is  also  in  point.  It  would  be  bad  to  say  that  the  defend- 
ant maliciously  indicted  the  plaintiff  for  felony ;  for,  by  such  a  general 
statement,  the  defendant  cannot  know  what  the  charge  against  him  is. 

Per  Curiam.  There  may  be  a  distinction  between  the  cases  put  of 
felony  and  perjury;  the  former'may  embrace  a  variety  of  charges,  but 
perjury  is  one  distinct  species  of  crime. '^^  But,  at  all  events,  this  count 
is  sufficient  after  verdict.  As  to  the  first  count,  that  is  also  good ;  for 
we  are  of  opinion,  that,  where  a  man  maliciously  prefers  an  indict- 
ment against  another  for  a  crime,  he  is  liable  to  an  action  for  it,  al- 
though the  indictment  be  defective ;  for,  in  either  case,  whether  the 
indictment  be  good  or  bad,  the  plaintiff  is  equally  subjected  to  the  dis- 
grace of  it,  and  put  to  the  same  expense  in  defending  himself 
against  it.''^ 

Rule  refused. 

71  The  charge  on  which  the  defendant  prosecuted  the  plaintiff  must  be 
stated.  Tempest  v.  Chambers,  1  Starlcie,  67  (1815) ;  Hughes  v.  Koss,  1 
Stew.  &  P.  (Ala.)  258  (1832) ;  Stephens  v.  Stephens,  24  U.  C.  C.  P.  424  (1874) ; 
Riley  v.  Gourley,  9  Conn.  154,  IGl  (1832)  semble;  Turpin  v.  Remy,  3  Blackf. 
(Ind.)  210  (1833);  Barry  v.  Co..  14  Phila.  (Pa.)  124  (1880);  Tavenner  v. 
Morchead,  41  W.  Va.  IIG.  23  S.  E.  673  (1895).  Accord.  Goldsmith  v.  Picard, 
27  Ala.  142,  149  (1855)  semble.  Contra. 

A  simple  statement  of  the  crime  charged  is  sufBcient.  Turpin'  v.  Remy, 
3  Blackf.  (Ind.)  210  (1833)  ;  Bartlett  v.  Jennisou,  6  Blackf.  (Ind.)  295  (1842) 
semble.  Accord.     Long  v.  Rogers,  17  Ala.  540  (1850).  Contra. 

A  slight  variance  from  the  charge  alleged  is  immaterial.  Hughes  v.  Ross, 
1  Stew.  &  P.  (Ala.)  258  aS32) ;  Richards  v.  Foulks,  3  Ohio,  66  (1827);  Arm- 
strong V.  Grogan,  5  Sneed  (Tenn.)  108  (1857).  Accord.  McNamee  v.  Minke, 
49  Md.  122,  130  (1878).  Contra. 

'2  Jones  V.  Gwyun,  10  Mod.  214  (1714);    Forrest  v.  Collier,  20  Ala.  175,  56 


160  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

PERDU  V.  CONNERIvY. 
(Court  of  Appeals  of  South  Carolina,  1838.    Rice,  48.) 

This  was  an  action  against  the  defendant,  for  causing  a  groundless 
prosecution  to  be  set  on  foot  against  the  plaintiff,  for  stealing  a  pair 
of  martingales. 

Curia,  per  O'Neall,  J.''^  The  ground  in  arrest  of  judgment  is  a 
very  general  one,  and  under  it,  the  counsel  has  presented  many  objec- 
tions. It  will  hardly  be  necessary  to  follow  him  through  them  all 
They  may  be  classed  under  two  heads — defects  in  substance,  and  in 
form.  As  to  the  last,  if  there  be  any  such  (which  I  have  been  unable 
to  discover,)  it  will  be  enough  to  say,  that  all  such  are  aided  by  verdict. 
As  to  the  first,  I  hope  to  be  able,  in  a  very  summary  way,  to  satisfac- 
torily dispose  of  them.  Under  this  head,  the  defendant  contended,  1st, 
that  as  the  plaintiff  had  set  out  the  information  made  by  Ruff,  charging 
the  felony,  he  showed  good  cause  for  the  prosecution,  and  therefore 
he  had  stated  himself  out  of  court.  If  the  plaintiff  had  been  guilty  of 
the  egregious  folly  by  his  record  to  admit  that  information  to  be  true, 
or  that  the  defendant  confiding  in  it,  had  set  on  foot  the  prosecution, 
then  this  objection  would  have  been  fatal:  but,  on  looking  at  the  dec- 
laration, it  appears  that  it  charges  that  the  defendant  contriving  and 
maliciously  intending  to  injure  the  plaintiff,  &c.  procured  one  F.  C. 
Ruff  to  appear  before  the  defendant,  a  justice  of  the  peace,  and 
falsely'^*  and  maliciously,''^  and  without  any  reasonable  or  probable 
cause  whatever,'^ ^  to  make  oath,  &c.  In  this,  the  act  done  by  Ruff  is 
charged  to  have  been  false,  malicious,  and  without  probable  cause,  and 
to  have  been  procured  to  have  been  thus  done  by  the  defendant,  ma- 
liciously. There  is  nothing  like  an  admission  of  probable  cause  in  this. 
The  defendant  is  liable  for  Ruff's  act,  as  done  by  his  procurement; 
for,  in  trespass,  all  who  are  concerned  in  any  way,  are  principals.'^ ^ 

2.  It  was  contended  that  it  was  necessary  to  allege  that  the  defend- 
ant knew  that  Ruff  had  no  reasonable  or  probable  cause  for  the  charge. 
This  is  in  effect  charged  when  he  is  charged  with  having  of  his  malice 

Am.  Dec.  190  (1852) ;  Schattgen  v.  Holnbacli,  149  111.  G46,  654.  36  N.-  E.  969 
(1894) ;  Gibbs  v.  Ames.  119  Mass.  GO  (1875).  Accord.  Stephens  v.  Stephens, 
24  U.  G.  C.  P.  424  (1874).  Contra. 

But  if  on  the  charge  as  alleged  the  court  would  have  had  no  jurisdiction  to 
act  at  all  then  the  declaration  is  bad.  Bixby  v.  Brundige,  2  Gray  (Mass.) 
129,  61  Am.  Dec.  443  (1854). 

T3  Statement  of  facts  abridged  and  part  of  opinion  omitted. 

7  4  That  this  is  material  see  Barry  v.  Salt  Co.,  14  Phila.  (Pa.)  124  (1880) 
hardly  a  semble ;  Tavenuer  v.  Morehead,  41  W.  Va.  116,  120,  23  S.  E.  673 
(1895)  hardly  a  semble. 

75  For  many  cases  holding  this  essential  see  13  PI.  &  Pr.  442;   26  Cyc.  75. 

7  6  For  many  cases  holding  this  essential  see  26  Cyc.  74 ;  13  PI.  &  Pr.  436. 

7  7  That  the  defendant  instituted  or  is  responsible  for  the  institution  of  the 
proceedings  is  a  necessary  allegation.  Apgar  v.  Woolston,  43  N.  J.  Law,  57 
aSSl)  semble ;    Jones  v.  Finch.  84  Va.  204,  4  S.  E.  342  (1887)  semble. 


Ch.  3)  CASE  161 

procured  a  false  and  groundless  charge  to  be  made.  But  if  it  is  not 
sufficiently  charged,  the  proof  was  ample  to  that  point  on  the  trial, 
and  after  verdict  a  defective  allegation  will  be  aided.  See  note  d. 
1  Chit.  PI.  251-252. 

3.  It  was  supposed  that  the  description  of  the  indictment  was  not 
sufficient.  The  general  rule  of  pleading  is,  that  "all  the  circumstances 
necessary  for  the  support  of  the  action  should  be  stated."  1  C.  P.  255. 
What  circumstances  were  necessary  to  be  stated  in  this  case?  1st, 
The  agency  of  the  defendant  in  causing  Ruff  to  make  a  false  charge; 
2d,  the  charge  thus  made;  3d,  the  arrest  of  the  defendant  ^® — his  com- 
mitment, or  enlargement  on  bail,  to  answer  the  charge ;  4th,  the  presen- 
tation of  the  bill  to  the  grand  jury — their  action  by  ignoring  it;  and 
5th,  the  discharge  of  the  plaintiff,  and  the  averment  that  the  prosecu- 
tion was  thus  ended. ^*  This  declaration  contains  all  these  things ;  and 
on  being  read  consecutively,  we  know  that  the  indictment  was  pre- 
sented on  the  charge  made  by  Ruff ;  for,  it  is  described  thus :  "A  bill 
of  indictment  was  presented  on  the  charge  aforesaid."  In  setting  out 
a  fact  of  this  kind  in  the  declaration,  no  greater  degree  of  certainty 
than  "certainty  to  a  certain  intent  in  general,"  could  be  demanded.  1 
C.  P.  237.  That  which  "upon  a  fair  and  reasonable  construction  may 
be  called  certain,  without  recurring  to  possible  facts  which  do  not  ap- 
pear," is  the  degree  of  certainty  meant  and  required.  Test  the  dec- 
laration by  this  rule,  and  read  it,  as  I  have  said  already,  consecutively, 
and  all  uncertainty  in  the  description  is  at  an  end. 

This  court  has  been  unable  to  discover  any  error  in  the  charge  of  the 
judge  below.  The  facts  went  properly  to  the  jury,  and  they  abun- 
dantly justified  them  in  finding  the  verdict  which  they  did.  The  mo- 
tions are  dismissed. 

Gantt,  Evans,  Richardson,  Earle,  and  Butler,  Justices. 


DECLARATION  FOR  DECEIT. 

(2  Chitty,  Pleading  [13th  Am.  Ed.]  pp.  *596,  *6S7.) 

In  the  Common  Pleas. 

next  after in Term, Will.  4. 

— (to  wit)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of  tres- 


pass on  the  case,  and  thereupon  the  said  A.  B.  by  E.  F.  his  attorney, 

78  Williams  v.  Ivey.  37  Ala.  244  (1861).  Accord.  Pangburn  v.  Bull,  1  Wend. 
(N.  Y.)  345,  350  (1828).  Contra.  If  the  action  is  for  a  malicious  arrest,  the 
arrest  is  a  material  allegation.  Reach  v.  Quinn,  159  Ala.  340,  48  South.  540 
(1909). 

7  8  For  many  citations  accord  see  26  Cyc.  76,  77;    13  PI.  &  Pr.  444. 

The  allegation  of  conspiracy  commonly  found  in  declarations  for  malicious 
prosecution  is  unnecessary.  Garing  v.  Fraser,  76  Me.  37,  41  (1884);  Hamil- 
ton V.  Smith,  39  Mich.  222,  231  (1878) ;  Kirtley  v.  Deck,  2  Munf.  (Va.)  10,  22, 
5  Am.  Dec.  445  (1811). 

Whit.C.L.Pl.— 11 


162  PLEADINGS   IN   TORT  ACTIONS  (Part   1 

complains  for  that  whereas  the  said  plaintiff,  on,  &c.  (venue)  bar- 
gained with  the  said  defendant  to  buy  of  him  a  certain  piece  or  parcel 
of  ground  of  the  said  defendant  called,  &c.  situate  and  being  in  the 

parish  of in  the  county  of and  the  said  defendant  then 

and  there,  to  wit,  at,  &c.  (venue)  aforesaid,  well  knowing  the  said  close 
to  contain  a  much  less  quantity  than  (three  acres)  of  land,  to  wit,  the 
quantity  of  (two  acres  and  a  half)  of  land  only,  by  then  and  there, 
to  wit,  at,  &c.  (venue)  aforesaid,  falsely  and  fraudulently  warranting 
the  said  close  to  contain  (three  acres)  of  land,  then  and  there,  to  wit, 
at,  &c.  (venue)  falsely,  fraudulently,  and  deceitfully,  sold  the  said  close 
to  the  said  plaintiff,  at  and  for  a  certain  sum  of  money,  to  wit,  the 

sum  of  £ — ' .  of  lawful  money  of  Great  Britain  to  be  therefor 

paid  by  the  said  plaintiff  to  the  said  defendant,  and  which  was  then 
and  there,  to  wit,  at,  &c.  aforesaid,  accordingly  paid  for  the  same; 
whereas  in  truth  and  in  fact  the  said  close,  so  as  aforesaid  sold  by  the 
said  defendant  to  the  said  plaintiff,  did  not  contain  (three  acres)  of 
land,  but  on  the  contrary  thereof,  contained  a  much  less  quantity  than 
(three  acres)  of  land,  to  wit,  the  quantity  of  (two  acres  and  a  half) 
only;  by  means  of  which  premises  the  said  plaintiff  lost  great  gains 
and  profits  which  he  otherwise  would  have  made  and  derived  from  the 
purchase  of  the  said  close,  and  was  put  to  great  charge  and  expense, 
to  wit,  at,  &c.  (venue);  and  so  the  said  plaintiff  in  fact  saith,  that  the 
said  defendant,  on,  &c.  aforesaid,  falsely  and  fraudulently  deceived 
him,  to  wit,  at,  &c.  aforesaid.    Wherefore  the  said  plaintiff  saith  that 

he  is  injured,  and  hath  sustained  damage  to  the  amount  of  £ ., 

and  therefore  he  brings  his  suit,  &c. 


PFORZHEIMER  et  al.  v.  SELKIRK  et  al. 
(Supreme  Court  of  Michigan,  1888.     71  Mich.  600,  40  N.  W.  12.) 

Case.  Plaintiffs  bring  error.  Affirmed.  The  facts  are  stated  in 
the  opinion. 

Sherwood,  C.  J.  This  action  was  brought  by  the  plaintiffs  against 
the  defendants  to  recover  damages  alleged  to  have  been  sustained 
by  the  plaintiffs  by  means  of  the  fraudulent  acts  and  pretenses  of  the 
defendants,  by  which  the  plaintiffs  were  induced  to  accept  331/3  per 
cent,  of  their  claim  against  the  firm  of  Alfred  T.  Selkirk  and  James 
L.  Whitford,  in  full  settlement  of  such  claim.  The  allegations  and 
averments  in  the  declaration  are  as  follows: 

The  defendants  Selkirk  and  Whitford  were  a  firm,  and  for  some 
time  previous  to  December  17,  1885,  were  engaged  in  the  business  of 
retail  dealers  in  silver  and  jewelry  and  plated  ware,  in  the  city  of 
Charlotte,  in  Eaton  county,  and  were  at  that  time  indebted  to  the 
plaintiffs  in  the  sum  of  $623.99,  which  was  then  due  to  said  plaintiffs, 
and  which  they  had  requested  the  said  firm  to  pay,  but  they  had  re- 


i 


Ch.  3)  CASE  163 

fused.  The  plaintiffs  aver  that  at  this  date  the  firm  was  doing  a 
safe  and  prosperous  business,  and  that  their  stock  of  goods  would 
then  have  inventoried  at  the  cost  price  from  $8,000  to  $10,000,  and 
against  which  there  was  no  incumbrance.  Plaintiffs  further  aver  that, 
the  defendants  fraudulently  intending  to  deceive  the  plaintiffs,  on  the 
ISth  day  of  December,  1885,  the  defendants  Selkirk  &  Whitford 
gave  a  mortgage  to  the  defendant  Almeda  Whitford  upon  all  their 
stock  of  jewelry,  merchandise,  and  fixtures  for  the  payment  to  her 
of  the  sum  of  $2,880.45  on  or  before  the  1st  day  of  March,  1886; 
and  the  said  firm  of  Selkirk  &  Whitford  on  the  same  day  gave  an- 
other mortgage,  purporting  to  be  subject  to  the  other,  on  the  same 
property,  to  defendant  John  Levy  for  the  payment  of  $2,000  on  or 
before  the  28th  day  of  December,  1885;  and  that  both  of  said  mort- 
gages were  duly  recorded  in  the  city  of  Charlotte.  JThat  the_said  Sel- — 
kirk  &  Whitford,  after  contriving^together  with  said  Almeda  Whit- 
*f Ord"  and  "fohrrLgvyT  and  with~tEeJntention  to  cheat  and  def raud_the_^ 
'said^plairitiffs,  dldT^n  the  26th  day  of  December,  1885,  make  anas- 
signment  oT'all  their^roperty,  except_Jhat_which  wasexe  from. 

""eScecilHonr  which  they  bwned^to  Eliza  Flora.^Qr_th£--beiiefit  of  tJie- 
•"creditors  "oT  Selkirk  &  Whitford,  j,nd_filed_  the  s^ame^vnththe  clerk 
of  EalolT'^o^unty;^   jThat,  including  said  mortgages,  it  was  made  to" 
appear  by   the  assignment  that   said   firm's   total   indebtedness   was 
$16,740.82,  and  the  assets  so  assigned  were  appraised  at  $4,248.22. 
That  on  the  13th  day  of  IMarch,  1886,  said  indebtedness  then  being 
due  and  owing  to  the  plaintiffs  from  the  said  firmj'^ie  defendants, 
well  knowing^  the  premises,^  falsely  and  fraudulently  represented  Jo_ 
*the^  plaintiffs  that  said  firm  were  wholly  insolvent^ndjunaHe_tOL._pay_ 
'any"parrof  these  debts.^^Thaf^aid"  moTtgages"  "were  made  and  deliv- 
ered in  good  faith,  and   for  the  consideration  expressed,  and  were 
valid  subsisting  liens  upon  the  property  therein  described.     That  the 
assignment  was  made  in  good  faith,  and  without  preferences.     And 
the  plaintiffs  further  aver  that  they,  '^confidingiJn._£aid_defendants,_ 
and  the  representations  made  to  them  by  the  defendants,  as  aforesaid, 
and  the  facts  set  forth"  TntTie  chattermortgages  and  jaid  a^gignnTentlL 

af tefvv^l^s7JorLjyiejr8(.h  d5}n^-I\,lsrfcTr,"X88^6_t_dijl_agi££^  . said. 

"SeTkirk  &  Whitford  and  the  other^defenclants_tQLr£leas£_and.  discharge, 
•"the  plaintiffs'  indebtedness  to  said  firm  by  the  payment  by  sajd  Levy 
"to^laintiffs  of  the' sum  of  331/3  per  cent,  of  the  sa|d  claim,  and  at 
"the~reqiiesr"of~rhe '  defeh"dants~they  assigned  their  said  claim  tq^  de- 
"fendant  Levy,  receivj_ng;^uch  payment  therefor^  And  pfaintiffs  fur- 
~ther  aver  that  said  mortgages  were  not  made  in  good  faith,  nor  was 
either  of  them  a  valid  and  subsisting  lien  upon  the  property  described, 
and  was  well  known  so  to  be  by  the  defendants.    That  they  were  not 
given  to   secure  any  indebtedness  of   said  firm,  but  to  hinder  and 
delay  plaintiffs  in  the  collection  of  their  debt,  and  the  assignment 
was  not  made  in  good  faith,  and  was  not  of  all  the  assignors'  prop- 
erty, and   was   not  made  without  preferences,   and   was    fraudulent 


1G4  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

and  void,  and  was  made  with  the  fraudulent  design  to  obtain  a  release 
of  the  claims  against  said  firm  at  a  less  sum  by  far  than  was  due 
thereon.  That  at  the  time  of  the  assignment  to  Levy  said  firm 
owned,  in  its  own  right,  a  large  amount  of  other  property  and  goods 
and  choses  in  action  and  money,  held  by  some  other  person  for  them, 
to  the  amount  of  $25,000,  not  mentioned  in  the  assignment,  and  which 
said  firm  fraudulently  concealed  from  the  plaintiffs.  And  they  fur- 
ther aver  that  said  defendants  represented  to  plaintiffs  that  the  money 
paid  on  said  release  was  the  money  of  said  Levy.  And  they  further 
aver  that  said  money  was  not  Levy's,  but  that  of  said  firm,  and  that 
this  fact  was  known  to  all  the  defendants,  and  that  by  such  fraudulent 
representations  and  concealments  of  defendants  they  have  been  dam- 
aged to  the  amount  of  $2,000. 

The  foregoing  is  the  substance  of  the  first  count  in  the  declaration, 
and  the  second  count  sets  up  the  same  representations  and  facts,  which 
are  relied  upon  to  mantain  the  action  in  the  first  count.  To  the 
declaration  the  defendants  Selkirk  &  Whitford  pleaded  the  general 
issue. 

The  defendants  Almeda  Whitford  and  John  Levy  appeared  sep- 
arately in  the  cause,  and  each  filed  a  general  demurrer  to  the  dec- 
laration. The  demurrers  were  argued  before  Judge  Hooker,  who 
made  the  following  decision  in  the  case : 

"The  declaration  is  in  case,  charging  defendants  with  combining, 
and  by  means  of  certain  false  pretenses  and  tokens  inducing  the  plain- 
tiffs, who  were  creditors  of  defendants  Selkirk  and  James  L.  Whit- 
ford, to  assign  their  claim  to  defendant  Levy  for  a  sum  much  less 
than  its  face.  A  declaration  of  this  kind  should  show:  First,  that 
the  representations  were  made  by  all  the  defendants,  or  that  by  reason 
of  their  collusion  they  may  be  treated  as  participating  in  them ;  sec- 
ond, that  they  were  made  with  the  design  of  influencing  the  defend- 
ants' [plaintiffs'?]  conduct;  third,  that  they  were  believed  to  be  true 
by  plaintiffs,  and  were  relied  upon  by  them,  and  that  they  induced 
the  desired  action  on  their  part;  fourth,  that  the  representations 
were  known  to  be  untrue  by  the  defendants  when  made;  fifth,  that 
the  plaintiffs  suffered  damage  from  the  action  that  they  were  induced 
to  take,  which,  being  special,  should  be  specially  pleaded;  sixth,  that 
the  damage  followed  proximately  the  deception.  As  the  declaration 
fails  to  sufficiently  state  these  things,  the  demurrers  will  be  sustained, 
with  costs,  to  be  taxed.  Plaintiffs  may  file  an  amended  declaration 
within  thirty  days,  upon  payment  of  costs." 

Judgment  was  entered  according  to  the  foregoing  conclusions,  and 
the  plaintiffs  bring  the  case  to  this  court  by  writ  of  error. 

It  is  only  the  sufficiency  of  the  declaration,  as  against  the  defend- 
ants Almeda  Whitford  and  John  Levy,  that  is  now  before  us  for  con- 
sideration. We  think  the  circuit  judge  made  a  proper  disposition  of 
these  demurrers.  It  appears  from  the  record  that  Mrs.  Whitford's 
mortgage  was  made  on  the  18th   day  of  December,  1885,  and  the 


Ch.  3)  CASE  165 

same  day  the  other  was  made  to  Mr.  Levy;  that  on  the  26th  day 
of  the  same  month  the  assignment  of  the  property  was  made  to 
Eliza  Flora,  and  not  until  the  13th  day  of  March  thereafter  the  al- 
leged fraudulent  transaction  occurred  which  is  made  the  subject 
of  this  action.  ^  It  is  the  fraudulent  obtainirig_the  settlement  r>f  thp 
plaintiffs'  claim  for  33^/^  cents  on  the  dollar  that  constitutes  the  griev- 


~ance  m  this  case  complamed  off  and  there  is  no  averment  in  the_xipr- 
laration    that   the    mortgages' an'd  'assignment    were   made   with    the 

'^rrowtedgE"^  the  parties  demurring,  for  any  such  purpose,  nor  that 
.    the^making^oTjlie  mortgages  was  a  part  of  the  same  transaction 

^  had  by'~de  fend  ants  Levy  and  Mrs.  Whitford  with  a  view,  ^to  ^bringing; 
abouFThe  claimed   fraiidulent  compromise.      It  must  be   recollected 

■~tTTe~m^ebte^ness  claimed  against  these  demurring  defendants  was 
not  contracted  by  reason  of  the  alleged  false  representations,  or  of 
any  representations  made  by  said  defendants  demurring.  They  were 
under  no  legal  or  equitable  obligation  to  pay  the  debt  compromised,  or 
any  portion  thereof;  and,  had  they  made  all  the  representations 
charged  in  regard  thereto,  they  could  not  have  been  made  liable. 
Especially  must  this  be  so  as  long  as  the  declaration  does  not  allege 
that  the  plaintiffs  were  not  ignorant  of  the  facts  represented,  and 
there  is  no  averment  in  the  declaration  that  the  plaintiffs  were  mis- 
led by  the  representations,  whatever  they  were.  The  representations 
are  alleged  to  have  been  made  by  Selkirk  and  Mr.  Whitford,  and  it  is 
not  averred  that  plaintiffs  believed  them.  It  is  not  sufficient  to  charge 
a  person  with  cheating  and  defrauding^anotTier  only,  or  with  "goib-- 
triving  and  conteclefatmg^with  others  to  defraud,  to  make  out  a  case 

'jo  f  Iraud^'^T'the  dedarafion^li^ust  j^^  set_  forth 

~lhe  factTcomplained'ofTl'elied  upo n_f or  a_recnvpry;   and  a  riprlaratinn 
'^alleging  as  the  cause  of  action  false  statements,  where  there  is  mQje_ 

'"thanjone  defendant,  should  aver  a  conspiracyj^and  enume£ate  the  false 
sfatements  and  the  circumstances   which   are  ._s_uppiised  to  create  the 

'itabiTity,  wftTi  particularity ;    and,  if  not  made  by  all  the  defendants, 

"Tt  should  be  averred  th'aT  tlTey  all  colluded  and  conspired  together  in 
such  manner  that  the  false  representations  by  those  who  did  not  par- 
ticipate in  making  them  were  authorized  by  them,  and  in  furtherance 
of  the  common  design  and  fraudulent  purpose.  It  should  also  be  aver- 
red that  the  false  statements  were  believed  to  be  true  by  the  plaintiffs, 
and,  thus  believing,  were  relied  upon  by  them,  and  that  they  induced 
the  action  taken  by  the  plaintiffs  ^°  which  resulted  in  damage  to  them. 
In  examining  this  declaration,  we  find  an  absence  of  nearly  all  of 
these  essential  requisites,  so  far  as  it  relates  to  the  defendants,  and 
we  think  their  demurrers  must  be  sustained. 

The  judgment  at  the  circuit  will  therefore  bo  affirmed.  The  other 
justices  concurred. 

80  Windram  v.  French,  151  Mass.  547,  24  N.  B.  914,  8  L.  R.  A.  750  (1890) 
semble;  Parker  v.  Armstrong,  55  Mich.  176.  20  N.  W.  892  (1884);  Ide  v. 
3ray,  11  Yt    615  (1839).  Accord.     See  further  20  Cyc.  100 ;   6  PI.  &  Pr.  906. 


166  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

WEST  V.  EMERY. 

(Supreme  Court  of  Vermont,  1845.     17  Vt  583,  44  Am.  Dec.  356.) 

Trespass  on  the  case  for  deceit  in  the  sale  of  a  horse.  The  declara- 
tion was  in  two  counts,  and  alleged  that  the  defendant  falsely  war- 
ranted the  horse  to  be  sound,  except  a  lameness  occasioned  by  being 
corked, — which  was  then  apparent, — and  that  the  defendant,  at  the 
time  of  making  the  warranty,  knew  that  the  warranty  was  false. 

On  the  trial  the  plaintiff's  testimony  tended  to  prove,  that,  while 
the  negotiation  for  the  exchange  of  horses,  as  alleged  in  the  declara- 
tion, was  pending,  the  plaintiff  asked  the  defendant  if  he  would  war- 
rant his  horse  to  be  sound,  and  that  the  defendant  replied,  that  he 
would  not  warrant  any  horse  sound,  but  that  "his  horse  was  sound, 
as  far  as  he  knew,  except  the  cork."  and  that  in  fact  the  horse  was 
unsound,  and  had  the  heaves  badly,  and  that  this  was  well  known  to 
the  defendant  and  was  not  known  to  the  plaintiff,  and  that  the  de- 
fendant's representation  was  made  with  a  view  to  deceive  the  plain- 
tiff, and  that  he  was  thereby  deceived.  The  defendant's  counsel  ob- 
jected to  the  testimony  being  received,  on  the  ground  of  a  variance 
between  that  and  the  declaration,  and,  the  court  entertaining  doubts, 
the  plaintiff  obtained  leave  to  file  an  additional  count,  under  a  rule, 
that,  if  he  recovered  only  on  that  count,  he  should  recover  no  back 
costs  and  should  pay  the  defendant's  costs  to  that  time,  with  leave 
to  save  exceptions,  if  the  court  should  decide  against  him. 

The  jury  returned  a  verdict  for  the  plaintiff,  and  the  court  decided 
that  the  plaintiff  was  entitled  to  judgment  upon  his  two  first  counts, 
and  that  there  was  no  variance  between  the  testimony,  as  above  de- 
tailed, and  the  second  count ;  to  which  decision  the  defendant  excepted. 

The  opinion  of  the  court  was  delivered  by 

REdFieIvD,  J.  The  only  question  in  this  case  is  one  of  variance, 
that  is,  whether  the  plaintiff  is  entitled  to  judgment  on  his  two  first 
counts,  or  only  upon  the  third  count.  This  question  is  important  only, 
it  will  be  perceived,  in  regard  to  the  amount  of  costs, — the  last  count 
having  been  filed  during  the  final  trial,  under  a  rule  that,  if  the  plain- 
tiff "should  only  recover  upon  his  new.  count,  he  should  recover  no 
back  costs,  and  pay  costs  to  that  time."  The  county  court  held  that 
the  plaintiff  was  entitled  to  judgment  on  the  two  first  counts,  and 
we  are  now  called  upon  to  revise  that  decision.  The  counts  are  all, 
substantially,  for  a  false  warranty  and  fraud  thereby,  alleging  the 
scienter, — as  in  the  case  of  Beenian  v.  Buck,  3  Vt.  53,  21  Am.  Dec. 
571.  This  last  case  is  based  mainly  upon  the  case  of  Williamson  v. 
Allison,  2  East,  446.  Under  a  declaration  in  this  particular  form  it 
has  been  the  practice  in  England,  for  more  than  fifty  years,  and  in 
this  state  for  nearly  twenty  years,  to  admit  proof  either  of  an  express 
promise,  or  fraud.  The  plaintiff  may  still  declare  upon  an  express 
promise  merely,  without  alleging  fraud, — in   which   case  he  will  be 


i 


Ch.  3)  CASE  167 

bound  to  prove  an  express  warranty,  as  alleged,  and  cannot  establish 
his  right  of  recovery  by  proof  of  fraud  merely. 

The  only  different^p  in-4b€  rojmts  in  thepresent  case  is.  that  the 
^ first  t\vo_counts  allege  a  general  warranty  of  soundness,  with  a  speci- 
fied exception  ^of  a  particular  defect,  and  the  breach  that  the  defend- 
anF\vell  knew  the  horse  to  be  otherwise  unsound,  lame,  &c.,  and  that 
this  was  the  fact ;  and  the  last  count  alleges  a  false  warranty  of  sound- 
ness as  far  as  the  defendant  knew,  with  the  same  exception  named 
in  the  first  two  counts,  and  alleges  the  same  breach,  precisely,  as  in 
the  former  counts.  The  proof  precisely  corresponded  with  the  words 
of  the  last  count,  and  the  inquiry  is,  whether  it  does  not  substantially 
agree  also  with  the  first  two  counts. 

1.  We  readily  perceive,  that,  when  the  plaintiff  relies  upon  proof 
of  an  express  warranty,  and  alleges  merely,  as  a  breach,  that  the  fact 
warranted  did  not  exist, — which,  in  such  case,  will  always  entitle  the 
plaintiff  to  recover, — there  is  a  manifest  difference  between  a  war- 
ranty absolute  in  its  terms,  and  .a  mere  warranty  of  soundness  to  the 
extent  of  the  defendant's  knowledge ;  and  a  declaration  upon  an 
express  warranty  merely,  absolute  in  its  terms,  would  not  be  supported 
by  the  proof  in  the  present  case. 

2.  But  when  the  defendant  [plaintiff?]  relies,  as  he  did  here,  upon 
false  and  fraudulent  representations  merely,  we  do  not  perceive  that 
there  is  any  difference,  so  far  as  liability  is  concerned,  whether  the 
representation  is  that  the  horse  is  absolutely  sound,  or  only  that  he 
is  sound  so  far  as  the  defendant  knows.  The  defendant  is  not  liable 
upon  either  of  these  representations,  unless,  at  the  time,  he  knew 
the  horse  to  be  unsound;  and  if  he  did  then  know  this  fact,  he  is 
equally  liable,  and  to  the  same  extent,  on  both  or  either  of  the  rep- 
resentations. 

It  is  the  breach  of  a  contract,  to  which  we  look  to  determine  its 
identity ;  and  when  the  same  state  of  facts  does  not  constitute  equally 
a  breach  of  the  contract  alleged  in  the  declaration,  and  that  proved 
on  trial,  there  is  a  variance ;  so  when  the  gist  of  the  action  is  tort 
in  the  making  false  representations  knowingly,  the  inquiry,  as  to  the 
identity  of  averment  and  proof,  turns  on  the  corresponding  point, 
that  is,  whether  the  same  proof  constitutes  equally  a  fraud  under  the 
averment  and  the  representation  as  in  fact  made.  That,  in  the  present 
case,  is  very  obvious. 

Judgment  afiirmed.^^ 

8 1  Parker  v.  Armstrong,  55  Mich.  176,  20  N.  W.  892  (1884) ;  Liimmis  v. 
Strattan.  2  N.  J.  Law,  *245  (1807);  Addingtoii  v.  Allen,  11  Wend.-(N.  Y.)  374, 
404,  412  (1833) ;  Cutter  v.  Adams,  15  Vt  237,  242  (1843).  Accord.  See,  fur- 
ther, 8  PI.  &  Pr.  900. 


168  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

FOWLER  V,  BENJAMIN. 

(Court  of  Queen's  Bench,  1859.    16  U.  C.  Q.  B.  174.) 

Declaration :  That  the  plaintiff,  before  the  committing  of  the  griev- 
ances by  the  defendant  as  hereinafter  mentioned,  applied  to  the  de- 
fendant to  be  by  him  informed  of  the  credit  and  circumstances  of 
Isaac  Lewine  and  Lyon  Lewine,  who  were  then  doing  business  to- 
gether at  Toronto,  under  the  style  and  firm  of  I.  &  L.  Lewine,  and 
who  had  before  then  applied  to  the  plaintiff,  and  requested  him  to 
furnish  them  with  goods  on  credit;  and  the  defendant,  in  reply  to 
the  said  application  of  the  plaintiff,  afterwards,  and  before  the  com- 
mencement of  this  suit,  wrongfully  and  falsely  informed  the  plaintiff 
that  the  said  Isaac  Lewine  and  Lyon  Lewine  were  then  worth  from 
four  to  five  thousand  pounds  between  them,  out  of  which  they  owed 
one  Moss,  and  the  defendant  and  his  co-partners,  the  sum  of  £1000 ; 
(and  also  that  they,  the  defendant  and  his  co-partners,  had  sold  to  the 
said  I.  &  L.  Lewine  that  spring,  for  Toronto  and  Quebec,  over  twelve 
hundred  pounds  currency,  the  notes  for  which  were  being  paid  as  they 
matured,  and  that  the  defendant  and  his  co-partners  had  that  au- 
tumn imported  six  hundred  pounds  sterling  for  the  said  I.  &  L-  Le- 
wine). And  the  plaintiff,  in  consequence  of  this  information,  and  be- 
lieving the  same  to  be  true,  did  afterwards,  and  before  the  commence- 
ment of  this  suit,  sell  and  deliver  to  the  said  Isaac  Lewine  and  Lyon 
Lewine  certain  goods  and  merchandise,  amounting  in  value  to  a  large 
sum  of  money,  to  wit,  to  £600.,  whereas,  in  truth  and  in  fact,  the  said 
Isaac  Lewine  and  Lyon  Lewine,  at  the  time  of  the  defendant  so  giv- 
ing the  information  to  the  plaintiff  as  aforesaid,  were  not  worth  from 
four  to  five  thousand  pounds,  and  the  defendant  then  well  knew  the 
same,  and  the  said  Isaac  Lewine  and  Lyon  Lewine  were  not  then  in- 
debted to  the  said  Moss  and  the  defendant,  and  his  co-partners,  in  the 
said  sum  of  ilOOO.,  exclusively  of  the  said  arrears  of  £1200.  currency, 
and  £600.  sterling,  so  sold  and  imported  as  aforesaid,  but  in  a  much 
larger  sum — that  is  to  say,  the  sum  of  £3000. — which  the  defendant 
well  knew:  and  the  plaintiff  further  saith,  that  though  the  time  for 
which  he  gave  credit  to  the  said  Isaac  Lewine  and  Lyon  Lewine  for  the 
goods  sold  to  them  as  aforesaid  has  elapsed,  yet  they  have  not  paid 
the  plaintiff  the  amount  due  for  the  said  goods,  nor  any  part  there- 
of, and  still  are  unable  to  pay  the  same,,  and  the  amount  thereof  is 
likely  to  be  wholly  lost  to  the  plaintiff.  And  the  plaintiff  claims  one 
thousand  pounds. 

Demurrer,  that  the  declaration  is  bad,  because  the  allegation  neg- 
ativing the  statement  of  the  defendant's  representations  is  more  ex- 
tensive than  the  representation  itself. 

Robinson,  C.  J.,  delivered  the  judgment  of  the  court. 

The  single  exception  pointed  out  in  the  demurrer,  is  that  the  aver- 
ment negativing  the  truth  of  the  defendant's  representation  is   more 


Ch.  3)  CASE  169 

extensive  than  the  representation  itself.  This  may  or  may  not  be 
an  objection,  according  to  the  nature  of  the  negative  averment.  In 
some  cases  the  exception  would  be  unreasonable  and  idle.  What  is 
alluded  to  here  is,  that  the  declaration  states  the  defendant  to  have 
represented  that  Isaac  and  Lyon  Lewine  were  then  worth  from  four 
to  five  thousand  pounds  between  them,  whereas  the  fact  is  stated 
to  have  been  that  they  were  not  then  worth  from  four  to  five  thou- 
sand pounds,  without  adding  the  words  "between  them." 

We  do  not  take  that  to  be  a  substantial  variance,  especially  con- 
sidering the  circumstances  which  are  set  forth.  The  first  statement 
no  doubt  refers  to  the  credit  or  worth  of  the  firm,  but  includes  also, 
as  we  assume,  what  either  of  them  individually  would  be  worth,  as 
in  the  case  of  an  ordinary  partnership  all  the  property  of  both  and 
of  each  would  be  liable  to  satisfy  the  partnership  debts.  But  the  as- 
sertion in  the  latter  part  of  the  statenient  would,  we  think,  go  the 
whole  extent  of  the  former,  for  Isaac  Lewine  and  John  [Lyon?]  Le- 
wine  together  would  be  worth  whatever  they  owned  either  as  copart- 
ners or  individually,  in  this  sense,  that  though  they  would  not  own 
jointly  the  separate  private  property  of  each,  yet  the  private  property 
of  each  would  constitute  a  fund  to  which  their  creditors  could  look  for 
payment ;  and  we  think  we  should  regard  the  words  in  the  latter  state- 
ment as  used  in  such  a  sense  as  to  deny  the  truth  of  the  former,  be- 
ing in  fact  co-extensive. 

But  if  that  part  of  the  declaration  were  clearly  bad,  it  would  not 
affect  the  rest  of  the  count,  if  there  is  in  it  besides  a  sufficient  state- 
ment of  an  independent  cause  of  action ;  and  this  we  think  there  is,  as 
regards  the  misrepresentation  of  the  amount  of  the  Messrs  Lewines' 
indebtedness  to  Moss  and  the  defendant  and  his  partners. 

Then  as  to  that  part  of  the  count,  it  seems  to  us  the  plaintiff, 
when  he  avers  that  the  Lewines  were  not  then  indebted  to  Moss  and 
the  defendant  and  his  co-partners  in  £1000.,  should  have  added  the 
word  only,  or  something  equivalent  to  it ;  but  what  strikes  us  as 
strange  and  inconsistent  with  this  action  in  the  statement  as  it  stands, 
is  clearly  enough  explained  by  the  addition  of  the  words,  "but  in  ^ 
much  larger  sum,  viz.,"  &c. 

We  see  on  the  face  of  the  whole  statement  that  the  plaintiff  has 
not  simply  denied  that  the  Lewines  were  indebted  in  £1000.,  but  in 
that  sum  and  no  more.  The  intent  is  too  plain  to  make  an  inaccuracy 
of  that  kind  of  any  consequence  now,  and  we  do  not  think  that  this 
exception  would  have  appeared  formidable  on  a  special  demurrer.^^ 

The  more  substantial  exception   is,  that  the  declaration  does   not 
aygfthat  tTie~ defendant' made  his  representation  fraudulently  or  ma-, 
liciously,  or  with  the  intent  to  deceive. 
"      We  haveToolcea  into  all  the  cases  cited  by  the  counsel  on  that 

82  Stoflet  V.  Marker.  34  Mich.  313  (1876) ;  Byard  v.  Holmes,  34  N.  J.  Law, 
296  (1870).  Accord.    See.  further,  20  Cyc.  99 ;  8  PI.  &  Pr.  899. 


170  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

point,  and  into  others,  and  we  have  no  doubt  that  the  declaration  states 
a  good  cause  of  action. 

It  is  averred  that  the  defendant  vi^rongfully  and  falsely  made  a 
statement  in  regard  to  the  credit  of  the  Lewines,  and  the  amount  in 
which  they  were  indebted  to  himself  and  his  partners  and  to  Moss, 
which  he  knew  at  the  time  to  be  false. 

To  make  wrongfully  and  knowingly  a  false  statement  of  the  amount 
of  a  party's  indebtedness  to  the  very  person  of  whom  the  inquiry  is 
made,  is  in  itself  a  fraud.  We  mean,  the  allegation  includes  it  so 
clearly  as  to  make  it  unnecessary  to  apply  the  epithet. ^^ 

The  distinction,  as  we  take  it,  is  between  cases  in  which  the  party 
may  be  supposed  to  be  expressing  his  opinion  or  conviction  merely, 
and  not  to  be  stating  a  fact  necessarily  known  to  himself.  We  refer 
on  this  point  to  Chitty  on  Pleading  (7th  Ed.)  405. 

It  has  been  objected  that  the  declaration  does  not  shew  that  the 
plaintiff  did  after  all  give  any  credit  to  the  Lewines. 

It  is  not  so  distinctly  averred  certainly  as  it  should  have  been, 
but  it  does  sufficiently  appear,  we  think,  on  the  face  of  the  whole 
declaration,  that  the  plaintiff  did  give  credit  to  them,  for  he  avers 
that  though  the  credit  had  elapsed,  his  goods  are  yet  unpaid  for. 
We  are  of  opinion  that  the  plaintiff  should  have  judgment  on  the 
demurrer. 

Judgment  for  plaintiff  on  demurrer. 


WATSON  V.  JONES. 

(Supreme  Court  of   Florida,   1899.    41  Fla.   241,  25   South.   678.) 

Error  to  circuit  court,  Escambia  county ;  William  D.  Barnes,  Judge. 

Action  by  Allen  R.  Jones  against  Thomas  C.  Watson.  There  was 
a  judgment  for  plaintiff,  and  defendant  brings  error.     Reversed. 

On  February  10,  189-1,  defendant  in  error  began  an  action  on  the 
case  for  deceit  against  plaintiff  in  error  in  the  circuit  court  of  Es- 
cambia county.  The  seventh  or  additional  count  added  to  the  dec- 
laration as  an  amendment  by  leave  of  court  alleges :  "And  because, 
to  wit,  on  the  18th  day  of  August,  1885,  the  defendant,  then  and  there 
being  the  agent  of  one  John  D.  Gray,  and  for  the  benefit  and  advan- 
tage of  him,  the  said  defendant,  as  agent  of  John  D.  Gray,  craftily 

8  3  Brady  v.  Finn,  162  Mass.  260,  38  N.  E.  506  (1894) ;  Eibel  v.  Von  Fell,  63 
N.  J.  Law,  3.  42  Atl.  754  (1899:  affirmed  without  opinion  in  64  N.  J.  Law, 
364,  48  Atl.  1117  [1900])  semble ;  Steip  v.  Seguine,  66  N.  J.  Law.  370,  49  Atl. 
715  (1901)  semble.  Accord.     See,  further.  20  Cyc.  100,  101 ;    8  PL  &  Pr.  897. 

The  intent  to  deceive  must  be  alleged.  Hoist  v.  Stewart,  154  Mass.  445, 
28  N.  E.  574  (1891) ;  Evertson  v.  Miles,  6  Johns.  (N.  Y.)  138  (1810) ;  Adding- 
ton  V.  Allen,  11  Wend.  (N.  Y.)  375,  386,  414  (1833);  Bartholomew  v.  Bentley, 
15  Ohio,  059,  45  Am.  Dee.  596  (1S4G). 


Ch.  3)  CASE  171 

and  fraudulently  procured  and  induced  the  plaintiff  to  make  a  loan 
of  two  thousand  dollars  to  said  John  D.  Gray  on  a  mortgage  upon 
certain  real  estate,  which  real  estate  the  said  defendant  falsely  and 
fraudulently  represented  to  be  free  of  incumbrances,  whereas,  as  de- 
fendant well  knew  or  ought  to  have  known,  the  said  real  estate  was 
subject  to  the  prior  lien  of  a  judgment  of  this  honorable  court,  of 
which  plaintiff  was  ignorant,  and  which  would  have  prevented  plain- 
tiff from  making  said  loan  had  he  had  knowledge  of  it,  and  the  said 
defendant  concealed  and  continued  to  conceal  the  same,  and  the 
plaintiff  remained  in  ignorance  of  it  until  after  the  foreclosing  of  the 
said  mortgage,  to  wit,  on  the  24th  day  of  November,  1891,  and  by 
reason  of  the  said  judgment  lien  plaintiff  realized  from  the  said  se- 
curity upon  the  foreclosure  thereof  one  thousand  and  fifteen  and  ^*/ioo 
dollars,  less  than  amount  to  which  he  was  entitled  under  the  provi- 
sions of  the  decree  of  foreclosure,  whereby  the  said  one  thousand  and 
fifteen  and  ^•*/ioo  dollars  has  been  lost  to  the  plaintiff." 

The  defendant  moved  to  strike  this  count,  because — First,  it  states 
two  causes  of  action;  second,  it  is  double;  third,  the  defendant  can- 
not properly  set  forth  his  defenses  thereto  as  framed.  Defendant 
also  filed  a  special  demurrer  to  this  count,  the  grounds  thereof  being 
the  same  as  the  motion  to  strike.  The  motion  and  demurrer  being 
overruled,  defendant  filed  two  pleas,  as  follows:  "(1)  That  he  is 
not  guilty;  (2)  that  said  count  is  based  on  transaction  connected  with 
the  loan  by  plaintiff  to  J.  D.  Gray  of  $2,000  on  the  19th  day  of  Au- 
gust, 1885,  and  was  completed  on  said  date,  at  which  time  the  alleged 
causes  of  action,  if  any  there  were,  accrued  to  plaintiff,  and  this  was 
more  than  three  years  before  the  institution  of  this  suit."  Plaintiff 
replied  to  the  second  plea  "that,  by  reason  of  the  matters  and  things 
stated  in  the  seventh  count  of  the  declaration,  he  did  not  discover  the 
existence  of  said  judgment  until  within  three  years  before  the  institu- 
tion of  this  suit."  The  defendant  demurred  to  this  replication  as 
being  "bad  in  law  and  substance,  and  insufficient  answer  to  said  plea." 
The  demurrer  being  overruled,  defendant  joined  issue  on  the  repli- 
cation, plaintiff  joined  issue  on  defendant's  plea  of  not  guilty,  and  the 
parties  proceeded  to  trial,  which  resulted  in  verdict  and  judgment 
for  plaintiff  in  the  sum  of  $1,273.51  and  costs.  Defendant's  motion 
for  a  new  trial  being  refused,  he  sued  out  the  present  writ  of  error 
from  the  judgment  rendered  against  him.     *     *     * 

Carter,  J.**  (after  stating  the  facts).  I.  The  rulings  upon  the  spe- 
cial demurrer,  the  motion  to  strike,  and  the  demurrer  to  the  replica- 
tion to  the  second  plea,  constitute  the  basis  of  the  first  three  assign- 
ments of  error.  We  shall  consider  them  all  together;  for,  in  dispos- 
ing of  the  demurrer  and  motion,  we  incidentally  determine  the  suffi- 
ciency of  the  replication  to  the  plea.     The  demurrer  and  motion  pre- 

84  Statement  of  facts  abridged  and  part  of  opinion  omitted. 


172  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

sent  the  same  identical  question,  the  pleader  being  uncertain  whether 
his  objection  ought  to  be  taken  by  special  demurrer  or  by  motion. 
His  objection  to  the  declaration  relates  to  the  use  of  the  words,  "well 
knew  or  ought  to  have  known,"  in  the  allegation  of  the  scienter.    He 
does  not  contend  that  this  form  of  allegation  is  bad  because  in  the 
alternative,  nor  that  it  renders  the  declaration  uncertain  or  insuffi- 
cient.    He  expressly  admits  that  either  form,  "knew"  or  "ought  to 
have  known,"  states  an  actionable  knowledge  of  falseness;    and  he 
confines  himself  to  the  argument  that  defenses  may  be  interposed  to 
a  count  alleging  that  he  "ought  to  have  known"  different  from  those 
admissible  to  a  count  alleging  that  he  "knew"  of  the  existence  of  the 
judgment  lien  at  the  time  he  made  the  alleged   representation,  and 
that  he  was  therefore  embarrassed  in  preparing  his  defense  to  a  count 
alleging  that  he  "knew  or  ought  to  have  known."     He  argues  that, 
under  section  1294,  Rev.  St.,  prescribing  alimitatiorf~onHree  years 
t:^fn--aT:tioiis  "for-rrii-e^oiijlie_^ound  of  fraud^lhe_cause  of  action  in 
J — such  case  is  not"ton3e  deemed  to  have  accrued  until  the  discovery  by 
^■lie  aj^giieved  party  of'TlTe  facts  constituting  the  fraud,"  in  an  action^ 
'  loi   deceit,  iifwhich  it  is  charged  tEat  defendant  "knew"  his  repre- 
'    sentation  to  be  false,  the  cause  of^actjon  accrues  from  the  "discovery 
by  the  aggrieved  party  ot  the  facts  constituting  the  fraud,"  while  in 
a  simTlar  action,  in  which  it  is  charged  that  defendant  "ought  to  have~ 
~^own"  the  falsity  of  his  representations,  the  cause  of  action  accrues 
— fiuin  tlie  time  plamtilT  acted  upon  the  falserepresentatTons.  without 

referenceTo^  the  time  he  discovered  the  facts  constituting  tTTe" fraud." 
— Froiirthcse  prernises  herconcTudes  that  tTie  count,  being  framed  upon 
tht  theoryThat  defendarnfTaiew,"  as  wellas  upon  the  theory  that  he_ 
"*'ougfiri6~have~knowri,"  that  his  jrpprpqpni-atinn  wp«;   ffilsfi,  was  bad 
""fui    dLipHcityV'an^    ffam^   so   as   t^  pmbarrass    him  .in   pleading  \he 
~statiile~Di"'limitatio^ns  as  a  defense. 

The  cleTencIant  in  error  contends:   JTh^  i"  artinns   for  dp^'^it,   it 
jig_only  necessary  t^_allege  thescienter  generally,  t.  e.  th^t  Hpfpnr1ant_ 
"knew"  hjs_re£resentation  to  be  falgg.    _Tl-iat,  under  this  general  al- 
""legation^  it  rnay^bpjrmved  -th.-at  th^-r^pr^s^nial-inn  was  made  eifhfr.— 
'"Krst,  \vith  actualjknowledge  of  its  falsityj^_se_cond,  withoiit_knQwledge 
eithef^T  its  truth  or  falsityj_^r^_AiTd^tmder  circunistarires  in  whiVh_ 
—^ei?ersgn'  making  it  ought  to  have  knownj_if_he_did  no^know,  of_ 
"its'-falsity.     Tliat  the  allegation  in  this~declaration  that  "defendant 
'"weirTcfTew^  or  ought  to  have  known,"  that  his  representations  were 
false,  does  not  charge  different  causes  of  action,  as  to  which  differ- 
ent defenses  may  be  interposed,  but,  at  most,  indulges  in  a  possible 
ambiguity  of  intimation  as  to  the  character  of  evidence  intended  to 
be  introduced  to  prove  the  scienter,  and  that  if  the  words,  "ought  to 
have  known,"  had  been  omitted  from  the  count,  the  count  would  still 
have  been  provable  by  evidence  that  defendant  "ought  to  have  known." 
He  insists  that  we  should  either  reject  those  words  as  surplusage,  or 


Ch.  3)  CASE  173 

hold  that  the  pleading  be  construed  most  strongly  against  him,  there- 
by confining  him  to  proof  that  defendant  "ought  to  have  known.'' 
*     *     * 

The  action,  being  for  deceit,  is  necessarily  founded  in  fraud,  and, 
in  order  to  make  out  a  case  of  fraud,  as  distinguished  from  inad- 
vertence, mistake,  negligence,  accident,  and  the  like,  it  is  necessary 
to  allege  and  prove  the  scienter — the  knowledge  of  defendant  that 
his  representations  were  false.^"*  Binnard  v.  Spring,  48  Barb.  (N.  Y.) 
470;  Holmes  v.  Clark,  10  Iowa,  423.  This  is  generally  held  to  be 
the  rule  both  in  England  and  America,  and  the  distinction  between 
fraud  and  warranty — between  deceit  and  honest  mistake — should  not 
be  lost  sight  of,  nor  should  the  action  for  deceit  be  confounded  with 
other  actions  at  law  or  in  equity,  in  which  no  proof  of  scienter  is  re- 
quired. The  courts  are  not  entirely  harmonious  as  to  the  quantity 
and  character  of  proof  necessary  to  sustain  the  allegation  of  scienter 
in  cases  of  this  character.  *  *  *  The  question  was  considered  by 
this  court  in  Wheeler  v.  Baars,  33  Fla.  696,  15  South.  584,  and  the 
defendant  in  error  relies  upon  the  decision  in  that  case  in  support  of 
the  position  assumed  by  him  in  this  one.  It  is  there  said  that  the 
scienter  may  be  proved  by  showing — First",  actual  knowledge  of  the 
falsity  ot  the  representation  by  defendant ;    second,  that  defendant 

"iiiade the^slatement  as  ot TiTs'bwnTcnowTedge^or  in  such_jj3<^olutej  un- 

-qtraiified,  a:nd~posrErve  fefms  as_to  implv  his  personal  knowledge  of 
the   fact,  when  in  truth   defendant  had   no  knowledge   whether  the 

"  statement  was  true"or  fatseT'  or,  third,  that  the  party's  special  situa- 
Tion  or  meaffs^oficnowledge  were  such  as  to  makeTt  his  duty  to  know 

"~as  to  the  truth  or  falsity  of  ttrenrepTes^ntatron.  Under  each  phase, 
^the  proot  must  "show  that^tlie'statenient  was  in  fact  false,  and,  in  ad- 
dition, under  the  first,  that  defendant  had  actual  knowledge  that  it  was 
false ;  under  the  second,  that  defendant  made  the  statement  as  of 
his  own  knowledge,  when  in  fact  he  had  no  knowledge  whether  it 
was  true  or  false,  which  seems  to  bear  a  close  resemblance  to  the 
English  rule — "without  belief  in  its  truth,  or  recklessly  careless  wheth- 


8B  Clark  V.  Lumber  Co.,  86  Ala.  220,  5  South.  560  (ISSS) ;  Bedell  v.  Stevens, 
28  N.  H.  118,  125  (lSo8) ;  Mahurin  v.  Harding,  28  N.  H.  128,  59  Am.  Dec.  401 
(1853)  semble;  Bayard  v,  Malcolm,  2  Johns.  (N.  Y.)  550,  3  Am.  Dec.  450 
(1807)  semble :  Griswold  v.  Gebbie,  126  Pa.  353.  363.  17  Atl.  673,  12  Am.  St. 
Rep.  878  (1889)  semble;  Wilson  v.  Talheimer,  20  Pa.  Co,  Ct.  203  (1897) 
semble.  Accord. 

An  allegation  that  representation  was  fraudulent  is  considered  as  alleg- 
ing that  defendant  knew  it  was  false.  Prvor  v.  McNairy,  1  Stew.  (Ala.)  150 
(1827) ;  Farwell  v.  Metcalf.  61  111.  372  (1871)  ;  Forsyth  v.  Vehmeyer,  176  111. 
359,  365,  52  N.  E.  55  (1898);  Beebe  v.  Knapp.  28  Mich.  53,  58  (1873);  Eibel 
V.  Von  Fell,  63  N.  J.  Law,  3,  42  Atl.  754  (1899 :  affirmed  without  opinion  in 
64  N.  J.  Law,  364,  48  Atl.  1117  [1900]). 

If  the  false  representations  alleged  are  seller's  talk  then  the  declara- 
tion must  allege  that  the  defendant  fraudulently  indued  the  plaintiff  to  make 
no  investigation  of  the  facts.  Williams  v.  McFadden,  23  Fla.  143,  1  South. 
€18,  11  Am.  St.  Rep.  345  ^1887) ;  Parker  v.  Moulton,  114  Mass.  99,  19  Am. 
Rep.  315  (1S73). 


174  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

er  it  be  true  or  false" ;  and,  under  the  third,  that  defendant's  special 
situation  or  means  of  knowledge  were  such  as  made  it  his  duty  to 
know  as  to  the  truth  or  falsity  of  the  representation. 

From  this  statement  it  is  quite  evident  that  proof  sufficient  to  sus- 
tain the  third  phase  tends  very  strongly  to  sustain  the  idea  that  the 
defendant  had  actual  knowledge  of  the  falsity  of  his  statement;  for 
when  it  is  shown  that  the  statement  was  material  and  false,  and  that 
the  defendant's  situation  or  means  of  knowledge  were  such  as  to  make 
it  incumbent  upon  him  as  a  matter  of  duty  to  know  whether  the  state- 
ment was  true  or  false,  the  conclusion  is  almost  irresistible  that  he 
did  know  that  which  his  duty  required  him  to  know.  For  this  rea- 
son the  law  conclusively  presumes,  from  the  existence  of  these  facts, 
that  defendant  had  actual  knowledge  of  the  falsity  of  his  statement; 
or,  more  properly  speaking,  proof  of  these  facts  is  sufficient  to  sus- 
tain a  charge  of  actual  knowledge,  dispensing  with  further  proof  up- 
on that  subject,  and  admitting  no  proof  to  rebut  the  fact  of  actual 
knowledge,  but  only  proof  to  rebut  the  existence  of  the  facts  from 
which  such  actual  knowledge  is  inferred.  We  are  therefore  of  opin- 
ion that  proof  of  scienter  in  the  third  phase  does  not  give  another  or 
different  right  or  ground  of  action  from  that  given  by  proof  under 
the  first  phase,  but  that  it  simply  establishes  the  same  ultimate  fact, 
viz.  knowledge,  by  a  different  class  of  evidence,  and  consequently 
that  an  allegation  that  defendant  "knew"  his  representation  to  be  false 
is  provable  by  evidence  embraced  in  the  third  phase.  In^  other  w^rHt;^^ 
an  averment  that  defendant's  situation  or  means  of  knowledge  were 
such  as"  made  it  his  duty  to  know  whether  his  statement  W3<^  true  or. 
Talse,  and  an  averment  ^at  defendant  well  knew  his  statemenf^  to 
'Ee'untrue,  are  but  differentjiiethods  of  stating  the  same  ultimate-fact, 
vT?.  Toiowledge.  -  McBeth  v.  Craddock,  28  Mo.  App.  .380;  De  Lay  v. 
""Carney  Bros!,  100  Iowa,  687,  69  N.  W.  1053. 

Without  committing  ourselves  to  the  proposition  that  the  words, 
"ought  to  have  known,"  are  in  pleading  a  sufficient  allegation  that 
the  defendant's  special  situation  or  means  of  knowledge  were  such 
as  to  make  it  his  duty  to  know  as  to  the  truth  or  falsity  of  his  repre- 
sentation, but  treating  them  as  such,  because  both  parties  agree  that 
they  are,  we  think  that  allegation  in  this  declaration  is  merely  an  al- 
ternative, cumulative,  and  superfluous  statement  of  the  same  ultimate 
fact,  viz.  knowledge,  admitting  of  no  other  or  different  defense  or 
evidence  than  the  allegation  which  it  follows,  that  "defendant  well 
knew,"  and  that  its  presence  in  the  declaration  did  not,  therefore, 
render  the  pleading  bad  for  duplicity,  or  so  framed  as  to  embarrass 
the  defendant  in  preparing  his  defense.  A  case  made  out  by  proof 
that  defendant  fraudulently  made  an  untrue  material  statement,  where 
his  special  situation  or  means  of  knowledge  made  it  his  duty  to  know 
whether  that  statement  was  true  or  false,  presents  a  pure  case  of 
fraud  and  deceit,  as  much  so  as  if  defendant  actually  knew  his  state- 
ment to  be  false.     In  either  case,  the  action  is  one  "for  relief  on  the 


Ch.  3)  CASEJ  175 

ground  of  fraud,"  and  the  cause  of  action  accrues  from  the  "discov- 
ery by  the  aggrieved  party  of  the  facts  constituting  the  fraud."  These 
conclusions  sustain  the  rulings  of  the  court  below  denying  the  motion 
to  strike,  and  overruling  the  special  demurrer  to  the  declaration,  em- 
braced in  the  first  and  second  assignments  of  error,  as  well  as  the 
ruling  upon  the  demurrer  to  the  plaintiff's  replication  to  defendant's 
second  plea,  embraced  in  the  third  assignment  of  error.     *     *     * 

The  judgment  of  the  circuit  court  is  reversed,  and  a  new  trial 
granted.®* 

BELMONT  BANK  OF  ST.  CLAIRSVILLE  v.  BEEBE.    ■ 

(Supreme  Court  of  Ohio,   1834.     6  Ohio,  497.) 

This  cause  was  adjourned  from  the  county  of  Belmont. 

Judge  Lane^  ^'^  stated  the  case  and  delivered  the  opinion  of  the 
court : 

This  case  stands  before  the  court  on  a  demurrer  to  the  declaration. 
The  plaintiffs  declare,  in  a  plea  of  trespass  on  the  case,  "that  on 
November  25,  1830,  at  the  county  aforesaid,  a  person,  to  the  plaintiffs 
unknown,  made  application  and  requested  plaintiffs  to  loan  him  one 
thousand  dollars  for  sixty  days;  that  said  person  so  unknown,  refer- 
red the  plaintiffs  to  the  defendant,  concerning  his  person,  name,  char- 
acter, and  standing;  that  said  defendant,  so  referred  to,  in  considera- 
tion that  said  plaintiffs  would  loan  the  said  person  the  sum  of  one 
thousand  dollars,  warranted  him,  so  unknown,  and  so  applying,  to 
be  a  reputable  and  respectable  man  of  Tuscarawas  county,  of  the 
name  of  Adam  Riggle,  and  thereby  induced  plaintiffs  to  loan  him 
one  thousand  dollars  for  sixty  days.  The  plaintiffs,  confiding  in  these 
representations,  loaned  the  money;  whereas,  in  fact,  said  person 
so  unknown,  and  so  warranted  to  be  a  reputable  and  respectable  man 
of  Tuscarawas  county,  by  the  name  of  Adam  Riggle,  was  not  a  man 
of  the  name  of  Adam  Riggle,  of  Tuscarawas  county;  by  means  of 
which  defendant,  falsely  and  fraudulently,  deceived  the  plaintiffs  on 
the  loan  aforesaid,  and  thereby  said  sum  of  money  became  wholly 
lost,  and  plaintiffs  have  been  subjected  to  great  expense  in  endeavor- 
ing to  discover  the  name  and  residence  of  said  person,  and  in  re- 
covering the  money  to  their  damage,  one  thousand  eight  hundred 
dollars.     *     *     * 

To  make  a  good  declaration  in  case  for  fraud,  it  is  necessary  to 
show  tliaOie-Jna3e  the  affirmation  fraudulently  with  the  intention  to_ 
deceive,  orjcnowing  the  contrary  to  be  jthe.  truth..    Ncl-SlUcIi  charac- 

86  Knowledge  of  falsity  need  not  be  alleged  if  it  is  alleged  that  the  de- 
fendant made  the  statement  as  of  his  own  knowledge  when  he  knew  he  had 
none.  Litchfield  v.  Hutchinson,  117  Mass.  195  (1S75).  The  same  is  true 
where  it  appears  in  the  declaration  that  the  defendant  should  have  known 
the  fact.  Barnes  v.  Railway,  54  Fed.  87,  4  C.  C.  A.  199  (1893 :  Colorado,  a 
code  state,  law). 

8  7  Part  of  the  opinion  omitted. 


176  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

ter  is  attached  to  them  by  the  pleader,  except_near  the  close^,  where 

^~Tie  states  that,  by  means  of  the  premises,  the  said  ploinfiff   [ripff|iri- 

ant?]    falsely   and    fraudulently    deceived   the   defendant    [plaintiff?]. 

This  seems  rather  an  inference  of  the  plaintiiT  than  a  direct  averment 

^of  the  fact.  Such  an  averment  was  held  good  after  verdict  in  New 
York.  11  Johns.  550.  But  it  seems _toJiaY£-Jieen  there  sustained  only 
because  objection  was.  laken  so  lale^ 

But  in  this  statement  of  the  cause  of  action,  it  is  not  shown  how 
any  injury  arose  from  the  act  of  the  defendant.  He  is  said  to  have 
warranted  the  person  to  be  a  respectable  and  reputable  man  of  Tus- 
carawas county,  of  the  name  of  Adam  Riggle,  whereas  he  was  not 
a  man  of  Tuscarawas  county  by  the  name  of  Adam  Riggle,  by  means 
of  which  he  deceived  the  plaintiff,  and  the  debt  was  lost.  He  does 
not  show  how  it  was  lost.  If  it  was  John  Riggle  instead  of  Adam, 
or  if  it  were  Adam  Riggle  of  Belmont  county,  the  representation 
would  not  be  true,  yet  no  injury  would  necessarily  follow. 

It  is  not  shown  that  the  person  was  not  Adam  Riggle,  or  that  there 
was  no  such  man.  It  seems  to  be  indifferent  to  the  plaintiff;  whether 
the  representation  was   true   or  notj^  the   inference  must    follow   the_ 

'premises,  the  injurvjnustjje  shown  to  arise  from  the  representatign^^ 

"^oFThe^ pleading  is  ill.*'_ 
Demurrer  sustained. 


SECTION  3.— DEFENSES 


THE  GENERAL  ISSUE  IN  CASE. 

(3  Chitty,  Pleading  [13th  Am.  Ed.]  p.  *1030.) 

In  the  King's  Bench. 

C.  D.  1  Term, Will.  4. 

ats.  [■  And  the  said  defendant,  by  E.  F.  his  attorney,  comes  and 
A.  B.  J  defends  the  wrong  and  injury,  when,  &c.  and  says,  that  he 
is  not  guilty  of  the  said  supposed  grievances  above  laid  to  his  charge, 
or  any  or  either  of  them,  or  any  part  thereof,  in  manner  and  form 
as  the  said  plaintiff  hath  above  thereof  Complained  against  him.  And 
of  this  he  the  said  defendant  puts  himself  upon  the  country,  &c. 


PLOWMAN  et  al  v.  FOSTER. 

(Supreme  Court  of  Tennessee,  18G8.     6  Coldw.  52.) 

At  the  May  Term,  1867,  this  cause  was  submitted  to  a  jury,  who 
found  for  the  plaintiff,  from  which  the  defendant  appealed  to  this 
Court,    Judge  M.  M.  Brien,  Sr.,  presiding. 

8  8  Northwestern   Co.  v.  Breautigam,   69  N.  J.  Law,  89,  54  Atl.  228  (1903) 

eemble.  Accord. 


i 


Ch.  3)  CASE  177 

Jame;s  O.  Shackelford,  J.,  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  trespass  on  the  case,  brought  by  the  defendant 
in  error,  against  the  plaintiff  in  error,  for  obstructing  an  alley.  The 
declaration  is  in  the  usual  form,  to  which  the  plaintiff  in  error  pleaded : 
First,  the  general  issue  of  not  guilty;  second,  the  statute  of  limita- 
tion of  two  years.  Issue  was  taken,  and  at  the  May  Term,  1867, 
the  cause  was  submitted  to  a  jury,  under  the  charge  of  the  Court, 
which  resulted  in  a  verdict  for  defendant  in  error.  A  new  trial  was 
moved  for,  the  motion  overruled,  and  judgment  rendered  against  the 
plaintiff  in  error;    from  which  there  was  an  appeal  to  this  Court. 

The  principal  error  assigned  arises  upon  the  part  of  his  Honor'j 

charge,  in  which  he  instructed  the  jury  that  the  plea  of  not  guilty 

"admitted  jhe  plaintiff's  ri^Ht  of  way  to  the_alley  in  question,  and 

that  this  plea  only  denied  that  the  defendant  had  obstructed  it,  and 

not  plaintiff's  right  of  way:    and  under  this  state  of  the  pleadings. 

^]gie~pIaintiF"need  not  deraign  his  tit1f  tn  the  n11n^;  that  th^  j"ry  would 

look  to  the  proof,  and  see  if  the  plaintiff  Jdefendant?]  had  obstructed^ 
the  way,  or  pl"aced~obstructions  in  it.  and  if  so  their  verdict  should 
be  for  the  plaintiff,  etc.  ^  The  pleadings  in  this  cause  are  under  the 
common  law  procedure  in  force  before  the  adoption  of  the  Code. 
THe'generalJssue  pleade_d  to  this  declaration,  .is  a  denial  of  the  whole 
Tause^of  action,  and  puts  in  issue  every  _ess.£ntiaLiacl  -Slal£d_Jn_ the 
declaration,  and  the  plaintiff  is  bound  to  prove  his_£ase^_InL.this_fQiirL- 
ot  action.  undertJ2e_general  issu^the  defendantmay  give  in  evidence 
any  matter  which  operatesjnjdischarge  of  the  cause  of  action',  and 
he  is  not  bound  to  pleadlTTs  defenses  specially.. 

There  is  an  essential  difference  between  the  actions  of  trespass 
and  trespass  on  the  case.  The  first  is  stricti  juris,  and  matters  in  ex- 
cuse or  justification,  must  be  pleaded  specially.  The  other  is  founded 
in  the  justice  and  equity  of  the  case;  for,  whatever  would,  in  equity 
and  conscience,  according  to  existing  circumstances,  preclude  the 
plaintiff  from  recovering,  might,  in  an  action  on  the  case,  be  given 
in  excuse,  by  the  defendant,  under  the  general  issue;  because  the 
plaintiff  must  recover  upon  the  justice  and  conscience  of  his  case, 
and  on  that  only:  1  Chitty's  Pleadings,  491.  The  case  referred  to 
by  the  counsel  for  defendant  in  error,  in  10  Humph.  110,  was  an 
action  of  trespass  for  taking  property;  and  the  Court  properly  held, 
the  defendant  could  not  justify  under  the  plea  of  the  general  issue, 
but  must  plead  specially  his  matters  of  defense.  The  case  in  5  Mass. 
385,  went  off  on  the  construction  of  a  statute  of  that  State.  Since 
the  adoption  of  the  revised  rules  of  pleading  in  England,  the  prin- 
ciples of  the  common  law  have  been  changed  upon  this  point'.  These 
rules  are  not  in  force  in  this  State,  and  we  must  follow  the  common 
law  system  of  pleading,  which  has  been  adopted  in  this  case,  under 
the  provisions  of  the  Act  of  February  14th,  1860,  which  is  a  part 
of  our  system  of  jurisprudence.     We  are,  therefore,  of  opinion,  the 

WHIT.C.L.PL.— 12 


178  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

Court  erred  in  his  instructions  to  the  jury  upon  this  point,  and  we 
are  constrained  to  reverse  the  judgment.  Other  exceptions  were 
taken  to  the  charge  and  ruHng  of  the  Court,  in  which  we  think  there 
is  no  material  error. 

The  judgment  will  be  reversed,  a  new  trial  awarded,  and  the  cause 
remanded.*" 


ARCHAMBEAU  v.  NEW  YORK  &  N.  E.  R.  CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1898.     170  Mass.  272, 
49  N.  E.  435.) 

Report  from  superior  court,  Worcester  county. 

Action  by  William  A.  Archambeau  against  the  New  York  &  New 
England  Railroad  Company.  Verdict  for  defendant.  Judgment  on 
the  verdict. 

Holmes,  J.  This  is  an  action  of  tort  for  personal  injuries  sustained 
while  the  defendant's  road  was  in  the  hands  of  receivers.  It  hap- 
pened that  the  next  day  after  the  accident  the  receivers  turned  over 
the  property  to  a  new  corporation,  so  that  the  case  suggests  a  possi- 
ble hardship.  But,  in  the  opinion  of  a  majority  of  the  court,  the  de- 
fendant cannot  be  made  liable  on  that  account  for'  an  act  done  by 
persons  who  were  not  its  agents  or  servants,  but  were  put  in  control 
of  its  property  by  an  adverse  act.  Railroad  Co.  v.  Davis,  23  Ind 
553,  85  Am.  Dec.  477;  Turner  v.  Railroad  Co.,  74  Mo.  602;  Rail- 
way Co.  v.  Stringfellow,  44  Ark.  322,  324,  51  Am.  Rep.  598 ;  Rail- 
way Co.  v.  Searle,  11  Colo.  1,  16  Pac.  328;  Railroad  Co.  v.  Hoech- 
ner,  14  C.  C.  A.  469,  67  Fed.  456 ;  Metz  v.  Railroad  Co.,  58  N.  Y. 
61,  66,  17  Am.  Rep.  201;  Brockert  v.  Railway  Co.,  82  Iowa,  369, 
47  N.  W.  1026;  Railway  Co.  v.  Huffman,  83  Tex.  286,  18  S.  W. 
741;  High,  Rec.  (3d  Ed.)  •§  396;  Beach,  Rec.  (2d  Ed.)  §§  384,  726; 
2  Elliott,  R.  R.  §  581.  The  special  grounds  upon  which  it  has  been 
thought  proper  to  charge  a  corporation,  to  the  extent  of  property  in 
its  hands  paid  for  out  of  income  by  the  receiver,  do  not  exist.  Rail- 
road Co.  v.  Davis,  62  Miss.  271;  Railway  Co.  v.  Johnson,  76  Tex. 
421,  13  S.  W.  463,  18  Am.  St.  Rep.  60;  Id.,  151  U.  S.  81,  99,  14 
Sup.  Ct.  250,  38  L.  Ed.  81.  As  the  defense  shows  that  the  defend- 
ant did  not  do  the  acts  complained  of,  it  is  admissible  under  a  gen- 
eral denial.    Railroad  Co.  v.  Davis,  23  Ind.  553,  661,  85  Am.  Dec.  477. 

Judgment  on  the  verdict. 

8  8  City  V.  McMurray,  76  111.  353  (1875) ;  Fulton  v.  Merrill,  23  111.  App.  599 
(1887).  Accord.    Jessup  v.  Loucks,  55  Pa.  350  (1867)  semble.  Contra. 


Ch.3)  CASE  179 


McNULTA  V.  LOCKRIDGE. 

(Supreme  Court  of  Illinois.  1891.     137  111.  270.  27  N.  E.  452, 
3]   Am.  St.  Rep.  362.) 

Error  to  appellate  court,  third  district. 

On  the  15th  day  of  January,  1887,  James  Molohan  and  I\Iary  E. 
Molohan,  his  wife,  while  attempting  to  cross  the  track  of  the  Wabash, 
St.  Louis  &  Pacific  Railway  in  a  sleigh,  at  a  public  crossing  in  Chris- 
tian county,  were  struck  by  a  locomotive  engine  and  tender  and  killed. 
On  the  13th  day  of  July  following,  Lockridge,  the  defendant  in  er- 
ror, as  administrator  of  their  respective  estates,  brought  suits  against 
the  plaintiff  in  error,  as  receiver  of  the  Wabash,  St.  Louis  &  Pacific 
Railway  Company,  for  causing  their  deaths.  The  declarations  in 
the  two  cases  were  alike  except  as  to  the  name  of  the  decedent ;  and 
by  agreement  of  parties  they  were  consolidated  and  tried  as  one  case. 
The  results  of  a  jury  trial  were  verdict  and  judgment  for  defendant 
in  error,  and  against  said  receiver,  for  $6,000  damages,  and  the  judg- 
ment was  afterwards  affirmed  in  the  appellate  court.  The  writ  of 
error  now  in  question  brought  the  record  to  this  court. 

The  declarations  upon  which  the  causes  were  tried  each  contained 
three  counts,  and  the  negligences  alleged  in  the  respective  counts  of 
each  declaration  were  that  the  statutory  signals  were  not  given  on 
approaching  the  crossing;  that  trees,  shrubbery,  etc.,  were  permitted 
to  remain  on  the  right  of  way  upon  and  about  the  crossing,  which 
obstructed  the  view  of  persons'  traveling  on  the  highway,  and  pre- 
vented the  deceased  from  seeing  the  engine  and  tender  in  time  to  avoid 
them ;  and  that  the  engine  was  driven  at  a  high  and  reckless  rate  of 
speed.  The  declarations  each  also  alleged  "that  on  the  16th  day  of 
December,  1886,  in  a  certain  cause  in  equity,  then  pending  in  the  cir- 
cuit court  of  the  United  States  for  the  southern  district  of  Illinois, 
wherein  the  Central  Trust  Company  of  New  York  and  others  were 
complainants,  and  the  Wabash,  St.  Louis  &  Pacific  Railway  Company 
et  al.  were  defendants,  one  Thomas  M.  Cooley  was  by  order  of  said 
court  appointed  receiver  of  the  Wabash,  St.  Louis  &  Pacific  Rail- 
way Company,  and  was  then  and  there  duly  qualified  as  such  receiver, 
and  from  thenceforward  until  the  1st  day  of  April,  A.  D.  1887,  had 
possession  of,  used,  and  operated  said  railway,"  etc.  And  each  dec- 
laration concluded  as  follows :  "And  the  plaintiff  further  avers  that 
said  Thomas  M.  Cooley  afterwards,  to-wit,  on  the  1st  day  of  April, 
A.  D.  1887,  resigned  his  said  office  of  receiver  as  aforesaid,  and  the 
said  circuit  court  of  the  United  States  for  the  southern  district  of 
Illinois  accepted  the  resignation  of  said  Thomas  M.  Cooley  as  such 
receiver,  and  afterwards,  to-wit,  on  the  1st  day  of  April,  A.  D.  1887, 
the  court  last  aforesaid,  by  an  order  entered  in  said  cause  aforesaid, 
appointed  the  defendant,  John  McNulta,  receiver  of  said  Wabash, 
St.  Louis   &  Pacific  Railway  Company;    that  said  defendant,  John 


180  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

McNulta,  then  and  there  duly  qualified  as  such  receiver,  and  he  thence- 
forward has  been  in  possession  of,  using,  and  operating  said  railway 
as  such  receiver,"  etc.  The  only  pleas  interposed  by  the  defendant 
were  pleas  of  not  guilty.     *     *     * 

The  court,  at  the  instance  of  the  defendant  below,  gave  to  the  jury 
some  13  instructions;  and  refused  to  give  several  others  that  were 
asked ;  and  among  those  so  refused  was  one  which  was  as  follows : 
"(4)  The  court  instructs  the  jury  that  it  is  averred  in  plaintiff's  dec- 
laration that  at  the  time  of  the  accident  in  question  Thomas  M.  Coo- 
ley  was  operating  the  railway  as  receiver  and  that  the  defendant  was 
subsequently  appointed  the  successor  of  said  Cooley  as  such  receiver, 
and  the  court  instructs  you  that  to  entitle  the  plaintiff  to  recover  this 
averment  must  be  proved,  and,  unless  the  plaintiff  has  made  such 
proof,  the  jury  should  find  for  the  defendant,  without  regard  to  all 
other  questions  in  the  case."     *     *     * 

Baker,  J.®°  *  *  *  Second.  It  is  conceded  by  plaintiff  in  error 
that  when  the  general  issue  alone  is  pleaded  it  does  not  put  in  issue 
either  the  character  or  capacity  in  which  the  defendant  is  sued.  It  is 
claimed,  however,  that  in  the  case  at  bar  the  general  issue  admitted  that 
McNulta  was  receiver  at  the  time  he  was  sued,  and  that  only.  We 
think  this  is  placing  too  restricted  a  signification  upon  the  implied  con- 
cessions made  by  the  pleadings.  Suppose  that  a  declaration  alleged 
that  A.,  since  deceased,  made  his  last  will  and  testament,  by  which  he 
appointed  B.  his  executor,  and  that  B.  qualified  and  acted  as  such  ex- 
ecutor; that  B.  afterwards  resigned  his  office  of  executor,  and  was 
discharged;  and  that  C.  was  thereupon  appointed  administrator  de 
bonis  non  cum  testamento  annexo,  and  duly  qualified  as  such  admin- 
istrator, and  became  and  was  the  successor  in  office  to  B. ;  and  fur- 
ther suppose  the  suit  was  brought  against  C,  as  such  administrator,  and 
for  the  purpose  of  enforcing  a  legal  liability  assumed  by  or  imposed 
upon  C.  in  his  capacity  of  executor,  and  the  declaration  alleged  in 
apt  language  the  facts  above  stated,  and  also  the  particular  cause  of 
action  sought  to  be  enforced, — in  such  state  of  the  case,  the  general 
issue,  and  no  other  plea,  being  filed,  there  would  be  an  implied  ad- 
mission not  only  that  C.  was  administrator  at  the  time  of  suit  brought, 
but  also  implied  admissions  that  B.  was  executor  at  the  time  when, 
etc.,  and  that  C.  was  successor  in  office  to  B.,  as  averred  in  the  dec- 
laration. Again,  suppose  suit  was  brought  against  the  Illinois  Cen- 
tral Railroad  Company,  and  the  declaration  averred  that  at  the  time 
when,  etc.,  said  company  was  operating  the  Illinois  Central  Railroad 
from  Chicago  to  Cairo,  that  at,  etc.,  on,  etc.,  aforesaid,  the  plaintiff 
was  a  passenger  on  said  railroad,  and  that  by  means  of  certain  speci- 
fied negligences  on  the  part  of  the  servants  of  the  railroad  company 
operating  the  train  upon  which  he  was  a  passenger  he,  the  plaintiff, 
received  certain  personal  injuries,  the  plea  of  not  guilty,  and  that  only, 

•  0  Statement  of  facts  abridged  and  part  of  opinion  omitted. 


Ch.  3)  CASH  181 

being  interposed,  it  could  not  properly  be  claimed  that  the  suit  of  the 
plaintiff  must  fail  for  the  reason  that  he  did  not  introduce  at  the  trial 
a  witness  who  could  testify  from  his  personal  knowledge  that  at  the 
time  when,  etc.,  the  corporation  sued  was  operating  the  railroad,  and 
that'  the  conductor,  engineer,  fireman,  and  others  operating  the  train 
had  been  employed  by  the  company  sued,  and  were  in  fact  its  serv- 
ants, and  not  the  servants  of  some  receiver  or  other  person  or  corpora- 
tion. In  the  case  last  stated  it  would  be  impliedly  conceded  by  the 
pleadings,  not  only  that  the  Illinois  Central  Railroad  Company  was 
a  corporation,  but  also  that  at  the  time  of  the  alleged  injury  it  was 
operating  the  particular  line  of  railroad  mentioned  in  the  declaration, 
and  that  the  operatives  in  charge  of  the  train  being  run  on  said  road 
were  its  servants  and  employes.  The  two  supposed  cases  above 
stated,  taken  together,  present  in  substance  the  case  that  appears  in 
the  record  now  before  us.  The  admission  upon  the  pleadings  is  of 
the  character  and  capacity  in  which  the  defendant  is  sued.  That  char- 
acter and  capacity  includes  not  only  the  bare  fact  that  at  the  time  that 
suit  was  instituted  plaintiff  in  error  was  receiver,  but  the  further 
facts  alleged  in  the  declarations  that  at  the  time  when,  etc.,  Cooley 
was  receiver  of  the  Wabash,  St.  Louis  &  Pacific  Railway  Company 
by  appointment  of  court  made  in  the  cause  in  equity  designated  in 
the- declarations,  and  was  in  possession  of  and  operating  the  line  of 
railway  mentioned  therein  as  such  receiver;  and  that  the  employes 
operating  the  trains  on  said  road  were  the  servants  of  said  Cooley 
as  such  receiver;  and  that  on  April  1,  1887,  said  Cooley  resigned  his 
office  of  receiver,  and  the  court  accepted  such  resignation,  and  on 
the  same  day,  and  in  the  same  cause,  appointed  McNulta  as  such 
receiver,  and  as  successor  in  office  to  Cooley ;  and  that  he,  McNulta, 
then  and  there  qualified  and  entered  upon  his  duties  as  such  receiver. 
In  line  with  what  we  have  thus  stated  on  this  point  is  the  case  of  Mc- 
Nulta V.  Ensch,  134  111.  46,  24  N.  E.  631.  The  views  we  have  ex- 
pressed sufficiently  indicate  our  opinion  that  the  trial  court  committed 
no  error  in  refusing  to  instruct  the  jury  as  requested  by  the  plaintiff 
in  error.  *  *  * 
Judgment  affirmed.^* 

31  Penn.  Co.  v.  Chapman,  220  111.  428,  77  N.  E.  248  (1906);  Brunhild  v. 
Traction  Co.,  239  111.  G21,  88  N.  B.  199  (1909).  Accord.  Cincinnati  Ry.  v. 
Goodson,  101  111.  App.  123  (1901).  Contra. 

It  is  clear  that  generally  the  defendant  may  under  the  general  issue  prove 
that  he  did  not  do  the  act  alleged  to  be  wrongful.  McPherson  v.  Daniels, 
10  B.  &  C.  263  (1829);  Wetherell  v.  Railway  Co.,  104  111.  App.  357,  362 
(1902). 


182  PLEADINGS  IN  TORT  ACTIONS  (Part   1 

GREENWALT  et  al.  v.  HORNER  et  al. 
(Supreme  Court  of  Pennsylvania,  1820.    6  Serg.  &  R.  71.) 

From  the  record  of  this  case,  which  came  before  the  Court,  on  a 
ivrit  of  error  to  Dauphin  county,  it  appeared  to  be  a  special  action 
on  the  case  brought  by  the  plaintiffs  in  error,  Jacob  Greenwalt,  Philip 
Leebrich,  and  Jacob  Andrew,  against  John  Horner,  Jacob  Keller,  and 
David  Keller,  the  defendants  in  error,  for  disturbing  them  in  a  right 
of  way  over  the  lands  of  one  of  the  defendants.  The  plea  was,  not 
guilty.    The  facts  of  the  case  were  as  follows : 

On  the  petition  of  Jacob  Greenwalt,  Philip  Leebrich,  and  Samuel 
Eshelman,  to  the  Court  of  Quarter  Sessions  of  February,  1808,  for  a 
public  road,  from  Killough  Run,  to  a  certain  tract  of  land  which  they 
had  purchased,  viewers  were  appointed,  who  reported  in  favour  of  a 
private  road,  which  they  designated  by  courses  and  distances.  At 
August  Session,  1808,  a  petition  was  presented  by  the  administrators 
of  Peter  Ebersole,  deceased,  over  whose  land  the  contemplated  road 
was  to  pass,  in  consequence  of  which,  reviewers  were  appointed,  who 
reported,  that  the  road,  marked  out,  would  be  highly  injurious  to 
private  property,  and  reported  one  by  different  courses  and  distances. 
This  report  was,  after  argument,  set  aside  by  the  Court,  and  re-re- 
viewers appointed,  by  whom  a  private  road  was  reported  over  the 
lands  of  the  heirs  of  Peter  Ebersole,  on  nearly  the  same  ground  as 
had  been  returned  by  the  first  viewers.  This  report  was  confirmed, 
and  an  appHcation  was  afterwards  made  by  the  administrators  of 
Ebersole,  for  the  appointment  of  viewers,  to  appraise  the  damages 
sustained  by  the  owners  of  property  in  consequence  of  opening  the 
road.  Viewers  were  accordingly  appointed,  who  made  the  following 
report : 

"That  the  petitioners  for  the  said  road,  are  to  hang  swinging  gates 
on  the  said  road  at  each  end,  at  their  expense,  and  in  case  any  water 
works  should  be  erected  on  Killough  Run,  and  the  said  road  be  any 
obstruction  unto  mills  of  any  kind  of  a  public  nature,  the  said  peti- 
tioners are  to  remove  the  said  road  to  the  west,  and  the  heirs  of  the 
said  deceased,  are  to  give  them  the  privilege  of  ground  for  the  said 
road ;  and  further  we  do  report,  that  the  petitioners  for  the  said  road, 
are  to  pay  the  sum  of  forty  eight  dollars  damages  for  the  said  ground." 

This  report  was  confirmed  by  the  Court,  and  the  damages  paid  by 
the  petitioners. 

When  the  cause  came  on  for  trial,  after  the  plaintiffs  had  gone 
through  the  evidence  in  support  of  their  case,  the  defendants  offered 
to  prove,  that  when  the  viewers  convened  on  the  premises,  for  the 
purpose  of  estimating  the  damages,  in  the  presence  of  the  plaintiffs 
and  the  owners  of  the  land,  it  was  mentioned  by  the  jury,  that  they 
would  appraise  the  road  without  taking  into  view  the  mill  seat,  pro- 
vided the  parties  would  agree  to  move  the  road,  in  case  any  mill  works 


Ch.  3)  CASE  183 

should  be  erected  on  the  ground  over  which  it  was  laid  out;  that  the 
plaintiffs  agreed  to  this  proposition,  and  consented  to  the  removal  of 
the  road,  whenever  any  mill  works  should  be  erected,  provided  the 
owners  of  the  land  would  give  them  other  ground  for  the  road ;  that 
when  the  owners  complained  of  the  contemplated  road  spoiling  the 
mill  seat,  and  one  of  them  observed,  that  he  could  build  an  oil  mill, 
a  fulling  mill,  or  some  other  mill  works  on  it,  Leebrich  said  in  the 
presence  of  Greenwalt,  if  they  could  make  a  mill  there,  he  would 
move  the  road,  and  be  no  hindrance  to  the  mill;  that  he  then  said, 
they  would  move  the  road  to  the  west,  if  mills  should  be  built;  that 
the  jury  then  appraised  the  damages,  only  for  the  ground  taken  for 
the  road,  at  forty-eight  dollars,  and  did  not  consider  the  value  of  the 
mill  seat;  that  the  value  of  a  mill  seat  there,  at  that  period,  was  from 
five  hundred  to  nine  hundred  dollars;  that  the  report,  estimating  the 
damages,  was  returned  to  the  Court  where  the  plaintiffs  had  an  attor- 
ney, who  superintended  their  interests,  and  conducted  the  proceedings 
in  procuring  the  road,  and  that  no -exceptions  were  made  to  the  report, 
but  that  it  was  agreed  to,  and  the  forty-eight  dollars  damages  paid 
by  the  plaintiffs ;  that  the  land  of  John  Horner,  one  of  the  defendants, 
consisting  of  sixteen  acres,  over  which  the  road  passed,  would  not 
be  worth  twenty  dollars  an  acre  without  a  mill,  and  that  he  gave 
eighty  dollars  an  acre  for  it ;  that  he  built  a  good  two  story  chopping 
and  clover  seed  mill ;  and  that  before  he  began  the  works,  or  to  ap- 
proach the  road,  he  gave  the  plaintiffs  liberty  to  make  a  new  road 
west  of  the  one  laid  out,  and  showed  them  the  ground  on  which  to 
make  it;  that  at  the  time  the  damages  were  appraised,  the  said  six- 
teen acres  belonged  to  the  heirs  of  Peter  Ebersole,  dceased,  whose 
son  took  them  at  an  appraisement,  and  sold  them  in  the  year  181-i, 
to  George  Horner,  who  was  at  that  time  married  to  one  of  Ebersole's 
daughters,  and  that  he  in  the  spring  of  1816,  sold  them  to  John 
Horner.  The  counsel  for  the  plaintiffs,  objected  to  the  admission  of 
evidence  in  support  of  these  facts,  but  the  Court  overruled  the  objec- 
tion, and  an  exception  was  taken  to  their  opinion.  *  *  * 
Duncan,  J,,^^  delivered  the  opinion  of  the  Court.  *  *  * 
On  this  exception,  depend  the  whole  merits.  It  is  contended,  that 
all  the  evidence  thus  offered  and  admitted,  was  impertinent  to  the 
issue.  First,  for  that  if  it  could  be  received  on  any  plea,  it  could  not 
on  the  general  issue.  This  objection  is  misconceived,  for  there  is 
an  essential  difference  between  actions  of  trespass  and  on  the  case; 
the  former  are  stricti  juris,  and  therefore,  a  former  recovery,  release, 
or  satisfaction,  cannot  be  given  in  evidence  on  the  general  issue,  but 
must  be  pleaded ;  but  the  latter  is  founded  on  the  mere  justice  and 
conscience  of  the  plaintiff's  case,  and  is  in  the  nature  of  a  bill  in 
equity,  and  in  effect  is  so,  and  therefore,  a  former  recovery,  release, 
or  satisfaction,  need  not  be  pleaded,  but  may  be  given  in  evidence; 

•2  Statement  of  facts  abridged  and  part  of  opinion  omitted. 


184  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

for  whatever  will  in  equity  and  conscience,  according  to  existing  cir- 
cumstances, preclude  the  plaintiff  from  recovering,  may  in  case  be 
given  in  evidence  by  the  defendant,  because  the  plaintiff  must  recover 
on  the  justice  and  conscience  of  his  case,  and  on  that  only.     Barber 
v.  Dixon,  1  Wils.  45;   Bird  v.  Randall,  3  Burr.  1353;   1  Wm.  Bl.  388. 
On  the  general  issue  the  plaintiff  is  put  to  the  proof  of  his  whole 
Jjase.  aniLJlie  defendjjit_jnay  give  in  evidence,  anv  justification,  or 
Txcuse  ofjt^     Birch  v.  Wilson,  2  Mod.  276 ;    Bradley  v.  Wyndham, 
-^  WITs.  44;    Brown  v.  Best,  1  Wils.  175.     This  is  the  general  law. 
The  cases  of  defamation_are_an  exception  to  tb^g  t-"1p;_there,  the 
truth  of  the  words  rnust^be  pleaded,"*  but  the  cause  of  speaking  the 
'----worTrs7^F^iT)TTcatioiTrin  writing,  may  be  given  in  evidence,  warrant- 
^TT^the  act ;   as  the  character  of  a  servant  given  by  his  former  mas- 
rter;   words  spoken_by_^oiLmsel4:>£rtiii£nt-tQ--thfi>  mnttpr  I'tq  jssnp.  and  a 
'variety  of  otEeF  matters,  whirh  g-o  tn  har  the  plaintiff's  recover);^" 
'Biftlhis  very  point  has  been  decided;   for  in  Newton  v.  Creswick,  3 
Mod.  166,  in  case  for  obstructing  ancient  lights,  on  not  guilty,  the 
defendant  was  permitted  to  give  evidence  of  a  custom  to  build  ancient 
foundations  to  any  height.    If  the  agreement,  coupled  with  the  report 
of  the  viewers  of  damages,  was  a  valid  one,  then  at  least  it  amounted 
to  a  license  on  a  given  event,  which  event  was  offered  to  be  proved ; 
the  use  of  the  road  for  mills.    Now  though  a  license  must  be  pleaded 
in  trespass,  yet  it  may  be  given  in  evidence  in  case.    2  Mod.  6,  7 ;    1 
Chitty's  Plead.  478.     And  in  this  State,  the  reception  of  evidence  on 
the  general  issue,  if  not  more  liberal  in  our  Courts,  is  not  stricter 
than   in  the  Courts  of   Westminster   Hall.     Nothing   could   form  a 

»3  Dalston  v.  Janson,  5  Mod.  90  (1696:  accident)  semble;  Slater  v.  Swan, 
2  Strange,  871  (1731 :  defense  of  property) ;  Barker  v.  Dixon,  1  Wilson,  45 
(1743 :  custom)  semble ;  Brown  v.  Best,  1  Wilson,  174  (1747 :  prescription) 
semble;  Bird  v.  Randall,  3  Burrows,  1345,  1354  (1762:  accord  and  satisfac- 
tion) semble ;  King  v.  Waring,  5  Espinasse,  13  (1803 :  consent)  semble ;  Jones 
V.  Buzzard,  2  Ark.  415,  442  (1839:  legal  process);  Rust  v.  Flowers,  1  Har. 
(Del.)  475  (1835 :  consent) ;  Wiggins  Co.  v.  Blakeman,  54  111.  201  (1870 :  con- 
tributory negligence — possibly  denial  in  Illinois :  fellow  servant^but  see  Chi- 
cago Ry.  V.  Leach,  208  111.  198,  70  N.  E.  222,  100  Am.  St.  Rep.  216  [1904], 
semble  contra) ;  City  of  Chicago  v.  Babcock,  143  111.  358,  365,  32  N.  E.  271 
(1892 :  accord  and  satisfaction)  semble ;  Kapischki  v.  Koch,  180  111.  44,  54 
N.  E.  179  (1899 :  former  recovery) ;  Papke  v.  Hammond,  192  111.  631,  643,  61 
N.  E.  910  (1901:  release);  Hills  v.  Railroad  Co.,  18  N.  H.  179  (1846:  con- 
sent) ;  Hall  V.  Snowhill,  14  N.  J.  Law,  551  (1835 :  legal  process) ;  Gilchrist 
V.  Bale,  8  Watts  (Pa.)  355,  34  Am.  Dec.  469  (1839 :  former  recovery) ;  Whit- 
ney V.  Clarendon,  18  Vt.  252,  46  Am.  Dec.  150  (1846:  former  recovery); 
Kidder  v.  Jennison,  21  Vt.  108  (1849 :  highway  officers) ;  Jerome  v.  Smith, 
48  Vt.  230,  21  Am.  Rep.  125  (1876:    defense  of  property).  Accord. 

94  Underwood  v.  Sparks,  2  Strange,  1200  (1744).  Accord.  Seldom  or  never 
doubted  since.     See,  for  many  citations,  13  PI.  &  Pr.  78 ;   25  Cyc.  475,  476. 

8  6  Tabart  v.  Tipper,  1  Camp.  350  (1808) ;  Hagan  v.  Hendry,  18  Md.  177, 
191  (1861);  Fresh  v.  Cutter,  73  Md.  87,  20  Atl.  774,  10  L.  R.  A.  67,  25  Am. 
St.  Rep.  575  (1890) ;  Bradley  v.  Heath,  12  Pick.  (Mass.)  163,  22  Am.  Dec. 
418  (1831 :  law  now  contra  by  statute  adopting  Code  rule  as  to  pleading  all 
defenses) ;  Carpenter  v.  Bailey,  53  N.  H.  590  (1873)  semble ;  O'Donaghue  v. 
McGovern,  23  Wend.  (N.  Y.)  20,  32  (1840)  semble ;  Hackett  v.  Brown,  2  Heisk. 
(Teuu.)  272  (1871)  semble.  Accord. 


Ch.  3)  CASE  185 

stronger  equity,  than  the  defence  set  up  by  the  defendants.  The 
plaintiffs  produced  the  report  of  the  viewers  of  damages  and  a  re- 
ceipt for  the  payment;  they  made  this  report  of  the  viewers  a  part 
of  their  own  case, — indeed  it  was  a  part  of  their  own  title,  without 
which  they  could  not  recover.  The  evidence  was  proper  to  show, 
and  to  show  by  the  viewers,  that  this  report,  was  founded  on  the 
agreement  of  the  petitioners,  was  made  on  the  ground  at  the  time  of 
the  view,  part  of  the  res  acta.  But,  it  is  objected,  that  all  the  parties 
were  not  present,  and  that  the  agreement  of  one,  could  not  bind  the 
others.  The  answer  is  obvious :  if  this  action  is  supportable  at  all, 
it  must  be,  because  the  plaintiffs  have  a  joint  interest,  and  have  re- 
ceived a  joint  injury;  two  of  the  plaintiffs  at  least  came  into  the 
agreement,  Leebrich  and  Greenwalt,  and  all  of  them  ratified  it;  ac- 
cepted the  report  of  the  road  on  the  terms  thus  agreed  on.  Whatever 
in  equity  takes  away  the  right,  takes  away  the  remedy,  and  under  the 
general  issue,  may  be  given  in  evidence.  The  evidence  was  properly 
received.  *  *  * 
Judgment  affirmed. 


HILL  V.  TOWN  OF  NEW  HAVEN. 

(Supreme  Court  of  Vermont,  1SG5.     37  Vt.  501,  88  Am.  Dec.  613.) 

Action  on  the  case  to  recover  damages  for  the  death  of  the  plain- 
tiff's intestate  alleged  to  have  been  caused  by  the  insufficiency  of  a 
certain  highway  in  the  town  of  New  Haven.  Plea,  the  general  issue, 
and  trial  by  jury,  June  Term,  1864,  Pierpont,  J.,  presiding.     *     *     * 

It  appeared,  and  was  not  disputed,  that  the  plaintiff's  intestate, 
George  H.  Eager,  while  on  his  way  from  Bristol  to  Middlebury  vil- 
lage, where  he  resided,  driving  a  pair  of  horses  attached  to  a  wagon, 
on  a  highway  in  the  town  of  New  Haven,  went  with  his  team  off 
from  the  highway  into  the  New  Haven  river,  and  was  drowned ;  that 
he  left  a  wife  and  two  children,  one  of  the  children  having  since  de- 
ceased; that  the  plaintiff  is  the  administrator  on  his  estate,  and  that 
due  and  reasonable  notice  was  given  by  the  plaintiff  to  the  defendant 

that  the  claim  for  damages  embraced  in  this  action  would  be  made. 
*     *     * 

After  verdict  and  before  judgment,  the  defendant  moved  in  arrest 
of  judgment  for  the  insufficiency  of  the  plaintiff's  declaration.  It  was 
clamied  that  the  declaration  should  have  specifically  alleged  that  the 
plaintiff's  intestate  died  within  two  years  before  this  suit  was  com- 
menced, whereas  it  only  alleged  the  time  when  the  injury  was  re- 
ceived and  when  he  died,  which  was  within  two  years  before  the  com- 
mencement of  the  action.    This  motion  was  overruled.     *     *     * 

Poland,  C.  J.°*  *  *  *  ^^^  motion  in  arrest  was  properly  over- 
ruled. 

»8  Statement  of  facts  abridged  and  part  of  opinion  omitted. 


186  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

The  statute  giving  an  action  in  cases  like  the  present,  to  the  rep- 
resentative of  the  person  whose  death  has  been  caused  by  the  wrong- 
ful act,  neglect  or  default  of  another,  provides  that  such  action  shall 
be  commenced  within  two  years  after  the  decease  of  such  person. 

The  declaration  in  this  case  states  the  time  when  the  injury  was 
received  and  the  death  of  the  plaintiff's  intestate  occurred,  and  this 
time  is  within  two  years  before  the  commencement  of  the  action,  but 
it  is  not  specifically  alleged  that  it  was  within  two  years. 

The  argument  of  the  defendant  is,  that  the  plaintiff  in  his  proof 
would  not  be  bound  by  the  day  alleged  in  the  declaration,  and  that 
he  might  prove  it  to  have  been  more  than  two  years  before  the  com- 
mencement of  the  suit,  and  thus  entitle  himself  to  recover  contrary 
to  the  provisions  of  the  statute. 

If  this  provision  of  the  statute  is  to  be  regarded  the  same  as  the 
ordinary  statute  of  limitations,  which  must  be  specially  pleaded  in 
order  to  entitle  a  party  to  avail  himself  of  it,^^  there  would  be  con- 
siderable force  in  the  objection.  But  we  do  not  regard  it  as  having 
precisely  that  character,  but  as  an  absolute  bar  not  removable  by  any 
of  the  ordinary  exceptions  or  answers  to  the  statute  of  limitations. 
So  if  upon  the  declaration  it  appeared  that  the  death  happened  more 
than  two  years  before  the  commencement  of  the  action,  the  declara- 
tion would  be  bad  upon  demurrer,  and  the  plaintiff  could  not  answer 
that  he  was  not  bound  by  the  day,  and  might  on  trial  prove  it  to  be 
within  two  years,  nor  would  the  defendant  in  such  case  be  compelled 
to  plead  the  statute.  And  so  if  it  be  alleged  within  two  years,  and 
on  trial  is  proved  to  be  more  than  two  years  before  the  commencement 
of  the  action,  the  defendant  would  be  entitled  to  a  verdict  for  that 
reason. 

Whether  this  declaration  would  have  been  sufificient  on  demurrer, 
we  are  not  called  upon  to  decide,  but  after  verdict  we  have  no  hes- 
itation in  upholding  it,  both  upon  the  ground  of  the  allegation  of  time 
being  sufificient,  and  also  that  it  was  a  necessary  fact  to  be  proved  on 
the  trial  in  order  to  enable  the  plaintiff  to  recover,  and  after  verdict 
it  would  be  presumed  to  have  been  proved,  if  the  time  had  not  been 
alleged  at  all.     *     *     * 

The  judgment  is  affirmed,  and  the  petition  for  a  new  trial  disrnissed 
with  costs. ^* 

»7  Dyster  v.  Batty e,  3  B.  &  Al.  448,  452  (1820)  semble;   Huston  v.  McPtier- 
son,  8  Blackf.  (Ind.)  562  (1847).  Accord. 
88  WaU  V.  Railway,  200  IlL  66,  65  N.  E.  632  (1902)  semble.  Contra. 


Ch.3)  CASE  187 

BROWN  V.  CONNELLY. 

(Supreme  Court  of  Indiana,  1840.     5  Blackf.  390.) 

Appeal  from  the  Montgomery  Circuit  Court. 

Blackford,  J.^  Connelly  sued  Brown  for  malicious  prosecution. 
The  declaration  states  that  the  defendant,  by  falsely  and  maliciously 
making  an  affidavit  that  the  plaintiff  had  feloniously  stolen  his  cow, 
had  caused  the  plaintiff  to  be  arrested  under  a  justice's  warrant,  and 
to  be  imprisoned  until,  &c.  There  are  two  special  pleas  relying  on 
probable  cause.  The  iirst  merely  states,  in  general  terms,  that  the 
defendant  had  a  probable  cause  for  the  prosecution.  The  second  sets 
out  the  facts  as  follows:  That  the  plaintiff  drove  away  the  defend- 
ant's cow  from  Tippecanoe  county  to  Putnam  county,  without  the 
defendant's  knowledge  or  consent,  and  sold  her  to  one  Bridges ;  and 
that,  afterwards,  when  the  defendant  asked  the  plaintiff  if  he  had 
sold  any  cows  to  Bridges,  the  plaintiff  said  he  had  not.  The  general 
issue  was  also  pleaded.  The  first  plea  was  specially  demurred  to, 
because  the  facts  are  not  stated,  and  the  demurrer  was  correctly  sus- 
tained.^ The  second  plea  was  also  specially  demurred  to  on  the 
ground  that  it  amounted  to  the  general  issue ;  and  the  Court  sustained 
the  demurrer.  The  cause  was  tried  on  the  general  issue,  and  a  verdict 
given  for  the  plaintiff.  Motion  for  a  new  trial  overruled,  and  judg- 
ment on  the  verdict. 

The  second  plea  is  not  bad  for  the  cause  assigned.  Whether  any 
given  facts  amount  to  a  probable  cause  for  the  prosecution,  is  a  ques- 
tion of  law.  Johnstone  v.  Sutton,  1  T.  R.  545;  Blachford  v.  Dod, 
2  Barn.  &  Adol.  179.  And  such  facts  may  therefore  be  specially 
pleaded.^  1  Chitt.  PI.  528;  Morris  v.  Corson,  7  Cow.  (N.  Y.)  281. 
It  is  true,  as  the  general  issue  was  filed,  under  which  probable  cause 
may  be  proved,  the  plea  in  question  was  unnecessary,*  and  might  have 
been  struck  out  on  motion.  Cotton  v.  Brown,  3  Adol.  &  Ell.  312. 
But  still  it  was  not  subject  to  a  demurrer  for  the  cause  alleged.  We 
think,  however,  that  this  plea  is  defective  in  substance,  for  not  show- 

1  Part  of  the  opinion  omitted. 

2  Horton  v.  Smelser,  5  Blaclcf.  (Tnd.)  428  (1840) ;  Legrand  v.  Page,  7  T.  B. 
Mon.  (Ky.)  401  (1828).  Accord.     See,  also,  13  PI.  &  Pr.  462. 

Likewise  in  ti'espass  for  false  imprisonment  in  pleading  reasonable  ground 
for  suspecting  plaintiff  guilty  of  a  crime,  the  facts  must  be  stated.  Mure  v. 
Kaye,  4  Taun.  34  (1811) ;   Wade  v.  Chaffee,  8  R.  I.  224,  5  Am.  Rep.  572  (1SG5). 

3  Birch  V.  Wilson,  2  Mod.  274  (1677) ;  Green  v.  Pope.  1  Ld.  Raym.  125 
(160G)  semble.  Accord. 

*  Newton  v.  Creswick,  3  Mod.  1G5  (1G30) ;  White  v.  Fox,  1  Bibt)  (Ky.)  3G9, 
4  Am.  Dec.  643  (1809) ;  Ross  v.  Neal,  7  T.  B.  Mon.  (Ky.)  407  (1828) ;  Folger 
V.  Washburn,  137  Mass.  GO  (1884).  Accord.  Fant  v.  McDaniel,  1  Brev.  (S.  G.) 
173,  2  Am.  Dec.  660  (1802).  Contra. 

That  the  prosecution  terminated  in  favor  of  the  present  plaintiff  Is  put 
in  issue  by  not  guilty.  Cole  v.  Hanks,  3  T.  B.  Mon.  (Ky.)  208  (182G) ; 
Lowe  V.  Wartmau,  47  N.  J.  Law,  413,  1  Atl.  489  (1SS5). 


188 


PLEADINGS   IN  TORT  ACTIONS 


(Part  1 


ing  a  sufficient  excuse  for  making  the  charge  described  in  the  decla- 
ration.    *     *     ♦ 

Per  Curiam.    The  judgment  is  affirmed  with  one  per  cent,  dam- 
asfes  and  costs." 


5  Pain  V.  Rochester,  Cro.  Eliz.  871  (1602) ;  Horton  v.  Smelser,  5  Blackf. 
(Ind.)  428  (1840)  semble ;  Garrard  v.  Willet,  4  J.  J.  Marsh.  (Ky.)  628  (1830) 
semble;  Morris  v.  Corson,  7  Cow.  (N.  Y.)  281  (1827)  semble.  Accord.  Newton 
V.  Creswick,  3  Mod.  105  (1630).  Contra. 

Generally  a  plea  in  confession  and  avoidance  argumentatively  denying  a 
necessary  allegation  is  bad.  Green  v.  Pope,  1  Ld.  Raym.  125  (1696) ;  Mc- 
Pherson  v.  Daniels,  10  B.  &  C.  263  (1829).  Accord. 

But  in  the  early  cases  there  was  uncertainty.  Lord  Cromwell's  Case,  4 
Co.  14a  (1581)  semble;    Shrewsbury  v.  Stanhope,  Popham,  66  (1595). 

And  it  seems  that  to-day  even  affirmative  defenses,  generally,  cannot  be 
pleaded  in  confession  and  avoidance.  Wiggins  Co.  v.  Blakeman,  54  111.  201 
(1870).  Accord.     Templeman  v.  Case,  10  Mod.  24  (1712).  Contra. 

Yet  there  is  some  indication  that  privilege  in  defamation  may  be  pleaded 
in  confession  and  avoidance  if  the  defendant  so  desires.  Hagan  v.  Hendry, 
18  Md.  177,  191  (1861)  semble ;  Carpenter  v.  Bailey,  53  N.  H.  590  (1873)  semble. 


Ch.  4)  TEOVBB  189 

CHAPTER  IV 
TROVER 

SECTION  1.— SCOPE  OF  THE  ACTION 


SWIFT  V.  MOSELEY  et  al. 
(Supreme  Court  of  Vermont,  1838.     10  Vt.  208,  33  Am.  Dec.  197.) 

Trover,  for  two  oxen,  three  cows  and  nine  sheep.    Plea — Not  guilty. 

On  the  trial  of  the  cause  in  the  county  court,  it  appeared  in  evi- 
dence, that,  in  the  spring  of  1835,  the  plaintiff  leased  a  farm,  lying 
in  Bridport,  (of  which  he  was  possessed  in  right  of  his  wife,)  to- 
gether with  the  above  mentioned  cattle  and  sheep,  to  one  Jirah  Swift, 
for  the  term  of  one  year ;  by  the  terms  of  said  lease,  the  plaintiff  and 
said  Jirah  Swift,  were,  at  the  end  of  the  year,  to  divide  the  profits 
of  the  farm  and  the  increase  of  the  stock,  equally  between  them,  which 
stock  was  to  remain  upon  the  farm  during  the  year,  unless  sold  or 
taken  off  by  the  consent  of  the  plaintiff  and  said  Jirah  Swift;  that 
some  time  in  the  month  of  August,  1835,  the  said  Jirah  Swift  sold 
said  cattle  and  sheep  to  the  defendants,  without  the  consent  of  the 
plaintiff,  and  absconded,  and  that  the  defendants,  immediately  after 
making  the  purchase,  drove  the  cattle  and  sheep  away  from  the  farm. 
The  plaintiff  introduced  testimony  tending  to  prove,  that  the  defend- 
ants knew  that  Jirah  Swift  had  no  right  to  dispose  of  the  cattle  and 
sheep,  and  that  they  purchased  them  much  under  their  value.  Upon 
this  evidence,  the  county  court  decided,  that  this  action  could  not  be 
sustained,  as  the  plaintiff  brought  the  suit  previous  to  the  termination 
of  said  lease,  by  the  terms  of  which  he  had  parted  with  his  right  of 
possession  of  the  property  in  question,  during  its  continuance,  and 
rendered  a  judgment  for  the  defendants,  to  which  decision  the  plain- 
tiff excepted. 

Redfie:ld,  J.  It  seems  to  be  well  settled,  that  the  plaintiff,  in  tres- 
pass de  bonis  asportatis,  or  trover,  in  order  to  maintain  the  action, 
must  have  had,  at  the  time  of  the  injury  complained  of,  either  the 
actual  custody  of  the  thing  injured  or  taken,  or  a  property  in  it,  either 
general  or  special,  with  the  right  to  immediate  possession,^     If  he  had 

1  Gordon  v.  Harper,  7  D.  &  E.  9  (179G) ;  Bloxam  v.  Sanders,  4  B.  &  C. 
941  (1825) ;  Booker  v.  Jones,  55  Ala.  266,  274  (1876) ;  Vincent  v.  Cornell,  13 
Pick.  (Mass.)  294,  23  Am.  Dec.  683  (1832);  Raymond  v.  Guttentag,  177  Mass. 
502,  59  N.  E.  446  (1901) ;    Clark  v.  Draper,  19  N.  H.  419  (1840) ;    Andrews  v. 


190  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

the  actual  custody  of  the  thing,^  even  wrongfully,'  he  may  maintain 
the  action  against  every  one,  whose  right  is  not  superior  to  his.  Per- 
haps a  mere  servant  could  not  be  said  to  have  any  such  custody.* 
His  possession  is  that  of  the  master.  The  general  owner  of  a  chattel 
may  always  maintain  the  action,  unless  he  have  parted  with  the  pos- 
session, for  a  "definite  term."  '^  Ward  v.  Macauley,  4  T.  R.  489.  Lord 
Kenyon  in  that  case  intimates  an  opinion,  that  trover  will  lie,  but  in 
Gordon  v.  Harper,  7  T.  R.  12,  it  is  expressly  held,  that  case  is  the 
only  remedy  for  an  injury  done  to  the  thing  bailed,  diiring  the  con- 
tinuance of  the  bailment. 

In  the  present  case  it  is  contended,  that  the  act  of  the  lessee  or 
bailee,  in  selling  to  the  defendants,  did,  ipso  facto,  determine  his  right, 
and  revive  the  right  of  the  plaintifif  to  immediate  possession.  If  so, 
the  plaintiff  may  maintain  this  action.  It  may  be  well  to  inquire  what 
acts  will  determine  a  bailment  of  this  character. 

It  is  certain  the  act  of  a  mere  stranger  will  not  operate  to  revive 
the  plaintiff's  right  to  immediate  possession.  Any  misuse  or  abuse 
of  the  thing  bailed,  in  the  particular  use  for  which  the  bailment  was 
made,  will  not  enable  the  general  owner  to  maintain  trespass  or  trover 
against  the  bailee.    His  only  remedy  is  case.     But  if  the  thing  be  put 

Shaw,  15  N.  C.  70  (1833) ;  JTaines  v.  Cochran,  26  W.  Va.  719.  723  (1885)  semMe. 
Accord.  rx)n£:fellow  v.  Lewis,  Fed.  Cas.  No.  8,487  (1878:  Mass.  law);  Cooke 
V.  Yfoodrow,  Fed.  Cas.  No.  3.181  (1807:    D.  C  law).  Contra. 

2  Rochester  Co.  v.  Locke,  72  N.  H.  22,  54  Atl.  705  (1903) ;  Marcy  v.  Parker, 
78  Vt.  73,  84,  62  Atl.  19  (1905).  Accord. 

8  Basset  v.  Maynard,  Cro.  Eliz.  819  (1601)  semble ;  Carter  v.  Bennett,  4 
Fla.  283,  355  (1852)  semble;  Grubb  v.  Guilford,  4  Watts  (Pa.)  223,  28  Am. 
Dec.  700  (1835).  Accord.  Kemp  v.  Thompson,  l7  Ala.  9  (1849) ;  Weil  v.  Pon- 
der, 127  Ala.  296,  28  South.  656  (1900).  Contra. 

Accordingly  jus  tertii  is  no  defense  where  the  plaintiff,  was  In  possession 
and  the  defendant  is  unconnected  with  the  jus  tertii.  Armory  v.  Delamirie, 
1  Strange,  505  (1722) ;  Webb  v.  Fox,  7  D.  &  E.  391  (1797) ;  Skinner  v.  Pin- 
ney,  19  Fla.  42.  54,  45  Am.  Rep.  1  (1882)  semble;  Coffin  v.  Anderson.  4 
Blackf.  (Ind.)  395,  410  (1837) ;  Stevens  v.  Gordoi?,  87  Me.  564,  33  Atl.  27  (1895) 
semble ;  Harker  v.  Dement,  9  Gill  (Md.)  7,  52  Am.  Dec.  670  (1850) ;  Stearns 
V.  Vincent,  50  Mich.  209,  216,  15  N.  W.  86,  45  Am.  Rep.  37  (1883)  semble; 
Prosser  v.  Woodward.  21  Wend.  (N.  Y.)  210  (1839)  semble;  Marcy  v.  Par- 
ker. 78  Vt.  73,  86.  62  Atl.  19  (1905).  Accord.  Sevier  v.  Holliday,  2  Ark. 
512.  576  (1840)  semble;  Ribble  v.  Lawrence,  51  Mich.  569.  17  N.  W.  60 
(1SS3:  where  defendant  acts  peaceably  and  imder  claim  of  right);'  Wil- 
liams V.  Brown,  137  Mich.  509,  572.  100  N.  W.  786  (1904)  semble;  Jones  v. 
Sinclair,  2  N.  H.  319,  9  Am.  Dec.  75  (1820)  semble;  Glenn  v.  Garrison,  17  N. 
J.  Law,  1  (1839)  ;  Schermerhorn  v.  Van  Volkenburgh,  11  Johns.  (N.  Y.)  529 
(1814:  not  clear) ;  Hostler  v.  Skull,  1  N.  C.  183;  1  Am.  Dec.  583  (1801);  Smoot 
V.  Cook,  3  W.  Va.  172,  100  Am.  Dec.  741  (1SG9).  Contra. 

4  Ludden  v.  Leavitt,  9  Mass.  10-i,  6  Am.  Dec.  45  (1812) ;  Stearns  v.  Vincent, 
50  Mich.  209,  217,  15  N.  W.  86,  45  Am.  Rep.  37  (1883) ;  Dillenback  v.  Jerome, 
7  Cow.  (N.  Y.)  294  (1827).  Accord. 

5  Right  to  possession  is  sufficient.  Roberts  v.  Wyatt,  2  Taun.  268  (1810)  ; 
Farrant  v.  Thompson,  5  B.  &  Al.  826  (1822) ;  Moulton  v.  Witherell,  52  Me. 
237  (1SG3);  Hunt  v.  Holton,  13  Pick.  (Mass.)  216  (1832);  Trust  Co.  v.  Hard- 
wood Co..  74  Miss.  584,  504.  21  South.  396  (1896) ;  Drake  v.  Redington.  9  N.  H. 
243  (183S);  Smith  v.  James,  7  Cow.  (N.  Y.)  328  (1827);  Jones  v,  Dugan,  1 
McCord  (S.  C.)  428  (1821).  Accord. 


Ch.  4)  TROVER  191 

to  a  different  use  from  that  for  which  it  was  bailed,  by  the  consent 
of  the  bailee,  we  think  the  bailor  may  maintain  trespass  or  trover. 

It  has  been  long  settled  that  if  the  bailee  kill  or  destroy  the  thing 
bailed,  trespass  or  trover  will  lie.  Coke's  In.  a,  53.  It  was  early  held, 
too,  that  the  interest  of  the  tenant  in  standing  trees  was  so  far  deter- 
mined by  their  being  severed  from  the  freehold,  that  the  landlord 
might  maintain  trespass. 

In  the  case  of  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826,  found 
in  the  7th  Com.  Law  R.  it  was  held  that  machinery,  leased  and  by 
the  lessee  severed  from  the  freehold,  became  instanter  re-vested  in 
the  lessor,  and  he  might  maintain  trover  even  during  the  continuance 
of  the  term.  The  case  is  expressly  put  by  the  court  upon  the  ground, 
that  the  lessee,  by  his  wrongful  act,  forfeits  his  right,  and  thus  "puts 
an  end  to  his  qualified  possession."  If  so  in  that  case,  much  more 
in  this,  where  the  bailee  sells  the  property.  The  same  doctrine  here 
decided  is  held  in  the  case  of  Sanborn  v.  Colman,  6  N.  H.  14,  23  Am. 
Dec.  703. 

The  judgment  of  the  County  Court  is  reversed,  and  a  new  trial 
granted." 


CLARK  v.  MALONEY. 

(Superior  Court  of  Delaware,  1840.     3  Har.  68.) 

Action  of  trover  to  recover  the  value  of  ten  white  pine  logs.  The 
logs  in  question  were  found  by  plaintiff  floating  in  the  Delaware  Bay 
after  a  great  freshet,  were  taken  up  and  moored  with  ropes  in  the 
mouth  of  Mispillion  creek.  They  were  afterwards  in  the  possession 
of  defendants,  who  refused  to  give  them  up,  alleging  that  they  had 
found  them  adrift  and  floating  up  the  creek. 

Bayard,  Chief  Justice,  charged  the  jury;  The  plaintiff  must  show 
first,  that  the  logs  were  his  property;  and  secondly,  that  they  were 
converted  by  the  defendants  to  their  own  use.  In  support  of  his  right 
of  property,  the  plaintiff  relies  upon  the  fact  of  his  possession  of  the 

« Loeschman  v.  Machin,  2  Starkie,  311  (1818) ;  Ayer  v.  Bartlett,  9  Pick. 
(Mass.)  156  (1829)  semble;  United  Co.  v.  Holt,  185  Mass.  97,  69  N.  E.  1056 
(1904) ;  Johnston  v.  Whittemore,  27  Mich.  463,  468  (1873) ;  Morse  v.  Craw- 
ford, 17  Vt.  499,  44  Am.  Dec.  349  (1845) ;  Turner  v.  Waldo,  40  Vt.  51  (1867 : 
not  clear) ;    Harvey  v.  Epes,  12  Grat.  (Va.)  153,  166  (1855).  Accord. 

It  is  commonly  said  that  if  one  having  a  special  interest  in  a  chattel  re- 
covers for  a  conversion  of  it  that  bars  a  suit  by  the  general  owner  to  re- 
cover for  the  same  wrong,  and  vice  versa.  Flewellen  v.  Rave,  1  Bulstr.  68 
(1611)  semble;  Nichols  v.  Bastard,  2  C,  M.  &  R.  659  (1835)  senible ;  The 
Winkfield,  (1902)  P.  42,  61  (1901:  Code)  semble;  St.  Louis  Ily.  v.  Bisjss,  50 
Ark.  169,  172,  175,  6  S.  W.  724  (1SS7 :  Code)  semble;  Smith  v.  James,  7  Cow. 
(N.  Y.)  328  (1827)  semble;  Hostler  v.  Skull,  1  N.  C.  183,  1  Am.  Dec.  583 
(1801)  semble.  See,  also,  2  Williams'  Saunders'  Rep.  47  i;  Holmes.  Common 
Law,  171.  In  Ribble  v.  Lawrence,  51  Mich.  569,  17  N.  W.  60  (1SS3)  it  was 
said,  though  not  decided,  that  the  recovery  by  a  bare  possessor  would  not  bar 
a  suit  by  the  owner. 


192  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

logs.  They  were  taken  up  by  him,  adrift  in  the  Delaware  Bay,  and 
secured  by  a  stake  at  the  mouth  of  Mispillion  creek.  Possession  is 
certainly  prima  facie  evidence  of  property.  It  is  called  prima  facie 
evidence  because  it  may  be  rebutted  by  evidence  of  better  title,  but 
in  the  absence  of  better  title  it  is  as  effective  a  support  of  title  as  the 
most  conclusive  evidence  could  be.  It  is  for  this  reason,  that  the  finder 
of  a  chattel,  though  he  does  not  acquire  an  absolute  property  in  it, 
yet  has  such  a  property,  as  will  enable  him  to  keep  it  against  all  but 
the  rightful  owner.  The  defence  consists,  not  in  showing  that  the 
defendants  are  the  rightful  owners,  or  claim  under  the  rightful  owner; 
but  that  the  logs  were  found  by  them  adrift  in  Mispillion  creek,  hav- 
ing been  loosened  from  their  fastening  either  by  accident  or  design, 
and  they  insist  that  their  title  is  as  good  as  that  of  the  plaintiff.  But 
it  is  a  well  settled  rule  of  law  that  the  loss  of  a  chattel  does  not  change 
the  right  of  property;  and  for  the  same  reason  that  the  original  loss 
of  these  logs  by  the  rightful  owner,  did  not  change  his  absolute  prop- 
erty in  them,  but  he  might  have  maintained  trover  against  the  plain- 
tiff upon  refusal  to  deliver  them,  so  the  subsequent  loss  did  not  divest 
the  special  property  of  the  plaintiff.  It  follows,  therefore,  that  as 
the  plaintiff  has  shown  a  special  property  in  these  logs,  which  he 
never  abandoned,  and  which  enabled  him  to  keep  them  against  all 
the  world  but  the  rightful  owner,  he  is  entitled  to  a  verdict. 
Verdict  for  the  plaintiff.'^ 


KNAPP  &  WORDEN  v.  WINCHESTER. 

(Supreme  Court  of  Vermont,   1839.     11  Vt.  351.) 

Trover,  for  sundry  articles  of  household  goods.  .  Plea — not  guilty, 
and  trial  by  jury. 

It  appeared,  on  the  trial  in  the  county  court,  that,  in  the  summer 
of  1836,  one  Pratt  and  his  wife  were  living  at  New  Fane,  where  said 
Pratt  was  confined  in  close  jail,  and  his  wife  became  sick,  and  one 
or  both  became  chargeable,  as  paupers,  to  said  town;  that  an  order 
of  removal  was  thereupon  obtained,  treating  said  Pratt  and  wife  as 
persons  having  their  legal  settlement  in  the  town  of  Marlboro',  which 
town  was  notified  of  said  order.  Their  settlement  in  Marlboro'  did 
not  appear  to  have  been  ever  disputed.     It  also  appeared,  that  the 

7  Armory  v.  Delamirie,  1  Strange,  505  (1722) ;  Brandon  v.  Bank,  1  Stew. 
(Ala.)  320,  18  Am.  Dec.  48  (1S2S)  ;  Lowremore  v.  Berry.  19  Ala.  130.  54  Am. 
Dec.  1&3  (1851) ;  Cook  v.  Patterson,  85  Ala.  102  (1859) ;  Coffin  v.  Anderson, 
4  Blackf.  (Ind.)  395,  410  (1837) ;  Duncan  v.  Spear.  11  Wend.  (N.  Y.)  54  (1833) ; 
Hughes  V.  Giles,  2  N.  C.  2G  (1794).  Accord. 

The  rule  is  the  same  in  detinue.  Behr  v.  Gerson.  95  Ala.  438,  11  South. 
115  (1891) ;  Boyle  v.  Townes,  9  Leigh  (Va.)  158  (1838).  And  in  replevin. 
Paul  V.  Luttrell,  1  Colo.  317  (1871) ;  Deaderick  v.  Quids,  86  Tenn.  14,  17,  5 
S.  W.  487,  6  Am.  St.  Rep.  812  (1887)  semble. 

A  fortiori  a  later  possessor  cannot  sue  a  prior  possessor.  Deaderick  v. 
Quids,  86  Tenn.  14,  5  S.  W.  487,  6  Am.  St.  Rep.  812  (1887 :    replevin). 


Ch.  4)  TROVEB  193 

plaintiff,  Knapp,  had  previously  contracted  with  said  town  of  Marl- 
boro', to  support  the  poor  of  said  town,  for  the  year  ending  in  March, 
1837,  for  a  specified  sum;  that  the  plaintiff,  Worden,  had  joined  said 
Knapp  in  a  bond  to  said  town,  to  secure  the  fulfilment  of  said  con- 
tract. And  the  evidence  tended  to  prove  that  the  plaintiffs  were 
jointly  concerned  in  supporting  the  poor  of  said  town,  for  that  year. 
It  also  appeared  that,  upon  receiving  notice  of  said  order  of  removal, 
said  town  of  Marlboro'  required  of  one  or  both  the  plaintiffs  to  sup- 
port said  Pratt  and  wife,  as  paupers  belonging  to  said  town ; — That 
the  plaintiffs  did  thereupon  take  charge  of,  and  support  the  wife  of 
said  Pratt  for  the  remainder  of  said  year,  at  considerable  expense; 
removing  her  first  to  Putney  and  afterwards  to  Marlboro',  and  that, 
with  said  woman,  the  plaintiffs  received  the  property  in  question, 
being  the  household  stuff  and  furniture  of  said  Pratt  and  wife. 

It  appeared  that  said  Pratt  absconded,  upon  getting  released  from 
his  said  confinement.  The  evidence  tended  further  to  show,  that,  at 
different  times  during  the  year  aforesaid,  the  plaintiffs  remonstrated 
with  the  overseers  of  the  poor  at  Marlboro',  against  supporting  said 
woman,  unless  they  could  have  the  property  aforesaid  as  a  considera- 
tion, or  part  consideration,  for  so  doing;  insisting  that  while  she 
continued  to  possess  and  own  said  property,  she  was  not  such  a  pau- 
per as  they  were  under  contract  to  support.  The  evidence  also  tended 
to  prove  that  the  plaintiffs,  for  the  reasons  aforesaid,  repeatedly 
claimed  said  property,  and  asserted  their  determination  to  retain  the 
same  to  their  own  use,  or  to  exact  the  value  thereof ;  but  it  did  not 
tend  to  prove  that  any  of  the  overseers  of  the  poor,  or  said  Pratt  or 
wife,  ever  acceded  or  assented  to  said  claim  of  the  plaintiffs.  It  fur- 
ther appeared  that,  after  the  year  aforesaid  had  expired,  one  Kelsey 
contracted  with  said  town  of  Marlboro'  to  support  the  poor  of  said 
town,  (including  the  said  Mrs.  Pratt,)  for  the  year  succeeding;  that, 
upon  the  4th  day  of  April  1837,  the  defendant,  being  one  of  the  over- 
seers of  the  poor  of  said  town,  went  with  said  Kelsey  to  the  house 
of  the  plaintiff,  Worden,  where  said  property  was,  for  the  purpose 
of  receiving  said  property,  to  the  end  that  said  Kelscy  might  take  and 
keep  the  same,  with  Mrs.  Pratt,  and  for  her  use  and  convenience; 
that  said  Worden  delivered  the  same,  taking  the  defendant's  receipt 
of  that  date  for  said  property,  and  knowing  that  it  was  to  go  imme- 
diately into  the  possession  of  said  Kelsey,  who  then  received  and 
carried  it  away.  On  this  occasion  said  Worden  repeated  to  the  de- 
fendant his  claim  to  said  property,  and  declared  his  intention  still  to 
have  it,  or  its  value.  It  was  further  proved  that,  on  the  15th  day  of 
December,  1837,  said  Worden  sent  his  brother,  Nathaniel  Worden, 
to  demand  said  property  of  the  defendant;  that  it  was  demanded  in 
presence  of  said  Kelsey ;  that  in  answer  to  said  demand  the  defendant 
said  the  property  was  in  said  Kelsey's  possession,  upon  which  Kelsey 
said,  "Nathaniel  cannot  have  it  till  my  year  is  out."  The  defendant 
Whit.C.L.Pl.— 13 


194 


PLEADINGS  IN  TORT  ACTIONS 


(Part  1 


said  nothing  further.  It  appeared  that,  at  the  expiration  of  said 
second  year,  said  property,  with  Mrs.  Pratt,  was  passed  over  by  said 
Kelsey  to  one  Morse,  who  succeeded  Kelsey,  in  supporting  the  poor 
of  said  town. 

Upon  these  facts,  and  the  evidence  aforesaid,  the  court  decided  that 
the  action  was  not  sustained, — and  a  verdict  was  thereupon  returned 
for  the  defendant.  To  which  decision  of  the  court  the  plaintiffs  ex- 
cepted. 

Redfield,  J.®    Two  questions  arise  in  the  present  case. 

1.  Have  the  plaintiffs  shown  any  sufBcient  property  to  maintain  the 
action  ? 

2.  Has  the  defendant  been  guilty  of  a  conversion?     *     *     * 

In  this  view  of  the  case,  were  the  two  propositions  above  stated 
sufficiently  proved  ?  It  is  not  pretended  that  the  plaintiffs  showed  any 
general  property  in  the  things  sued  for.  They  belonged  to  Pratt,  and 
were  in  the  custody  of  his  wife.  She  had  them,  for  her  own  conven- 
ience, while  with  the  plaintiffs.  She  gave  no  consent  to  plaintiffs' 
retaining  them,  neither  did  Pratt.  The  overseers  of  the  poor  had  no 
right,  nor  did  they  attempt,  to  convey  any  interest  to  plaintiffs.  The 
plaintiffs'  right,  then,  after  Mrs.  Pratt  left,  was  only  that  of  a  mere 
naked  possession.  This  is  of  itself  a  suf^cient  title  to  sustain  trover 
against  any,  but  the  one  lawfully  entitled  to  the  possession.  In  this 
respect  it  matters  not  whether  the  possession  be  rightful  or  obtained 
by  force  or  fraud.  It  is  a  sufficient  title,  in  either  case,  to  maintain 
trover  against  a  mere  stranger.  But  in  the  present  case,  the  plaintiffs 
surrendered  their  possession  for  the  benefit  of  Mrs.  Pratt.  Whatever 
right,  then,  they  had  acquired  by  that  possession  was  as  effectually 
gone,  as  if  they  had  never  had  the  possession.  The  plaintiffs  did,  in- 
deed, at  the  time  of  giving  up  their  possession^  enter  a  protest  against 
being  thereby  concluded  in  asserting  their  rights  to  the  property.  But 
this  will  not  avail  them  as  a  substantial  ground  of  recovery.  It  pre- 
vents any  inference  against  them,  but  is  no  ground  of  inference  in 
their  favor.  They  did  not  even  require  of  the  defendant,  on  receiving 
the  property,  to  stipulate  a  return  of  it.  The  receipt  given  is  merely 
evidence  of  the  possession  having  passed  over  to  defendant  by  consent 
of  plaintiffs.  There  is,  then,  no  evidence  in  the  case,  tending  to  show 
any  such  right  of  property  in  the  plaintiffs,  as  will  warrant  a  recovery. 

The  court  find  no  evidence  of  conversion  by  defendant.  The  taking 
was  by  consent  of  plaintiffs.  The  use  vv^as  consistent  with  the  intent 
for  which  it  was  delivered.  The  demand  and  refusal  could  be  no 
evidence  of  conversion,  the  possession,  at  the  time,  not  being  in  de- 
fendant.   Smith  V.  Young,  1  Campbell,  440 ;  Rice  v.  Clark,  8  Vt.  109. 

Judgment  affirmed.* 


8  Part  of  the  opinion  omitted. 

9  Clark  V.  Malouey,  3  Har.  (Del.)  68  (1840)  semble.  Accord. 

The  same  rule  in  detinue.     Philips  v.  Robinson,  4  Bing.  106  (1827: 
possessor  had  conveyed  his  right  to  another). 


prior 


Ch.  4)  TEOVEB  195 

■  SECTION  2.— NECESSARY  ALLEGATIONS 


DECLARATION  IN  TROVER. 

(2  Chitty,  Pleading  [13tli  Am.  Ed.]  pp.  *596,  *S35.) 

In  the  Common  Pleas. 

next  after in Term, . —  Will.  4. 

-(to  wit.)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea  of 


trespass  on  the  case,  and  thereupon  the  said  A.  B.  by  E.  F.  his  attor- 
ney, complains,  for  that  whereas  the  said  plaintiff,  heretofore,  to  wit, 
on,  &c.  at,  &c.  (venue)  was  lawfully  possessed,  as  of  his  own  property 
of  certain     *     *     *     goods  and  chattels,  to  wit,  ten  horses     *     *     * 

of  great  value,  to  wit,  of  the  value  of  £ — .  of  lawful  money  of 

Great  Britain.  And  being  so  possessed,  the  said  plaintiff  afterwards, 
to  wit,  on  the  day  and  year  first  above  mentioned,  at  &c.  (venue) 
aforesaid,  casually  lost  the  said  *  *  *  goods  and  chattels,  out  of 
his  possession;  and  the  same  afterwards,  to  wit,  on  the  day  and  year 
first  aforesaid,  at,  &c.  (venue)  aforesaid,  came  to  the  possession  of 
the  said  defendant  by  finding.     Yet  the  said  defendant  well  knowing 

*  *  *  the  said  goods  and  chattels,  to  be  the  property  of  the  said 
plaintiff,  and  of  right  to  belong  and  appertain  to  him,  but  contriving, 
and  fraudulently  intending  craftily  and  subtly  to  deceive  and  defraud 
the   said  plaintiff  in  this  behalf,   hath  not  as  yet  delivered  the  said 

*  *  *  goods  and  chattels,  or  any  or  either  of  them,  or  any  part 
thereof,  to  the  said  plaintiff,  although  often  requested  so  to  do,  and 
hath  hitherto  wholly  refused  so  to  do;  and  afterwards,  to  wit,  on 
the  day  and  year  last  aforesaid,  at,  &c.  (venue)  aforesaid,  converted 
and  disposed  of  the  said  *  *  *  goods  and  chattels,  to  his  own 
use.     Wherefore  the  said  plaintiff  saith  that  he  is  injured,  and  hath 

sustained  damage  to  the  amount  of  £ .,  and  therefore  he  brings 

his  suit,  &c. 


WARREN  v.  DWYER. 

(Supreme  Court  of  Michigan,  1892.    91  Mich.  414,  51   N.   W.  10G2.) 

Certain  mortgagees  of  the  property  in  question,  after  the  alleged 
conversion  by  the  defendant,  a  sheriff  who  levied  on  the  goods,  "as- 
signed their  cause  of  action  against  the  sheriff  to  the  plaintiff,  and 
authorized  him  to  prosecute  the  same  in  his  own  name."  ^° 

Morse,  C.  J.  *  *  *  It  is  further  contended  that,  as  the  plain- 
tiff did  not  allege  in  his  declaration  the  assignments  of  the  mortgagees' 

10  This  short  statement,  is  substituted  for  the  more  lengthy  one  given  in 
the  first  part  of  the  court's  opinion,  which  is  omitted. 


196  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

right  of  action  to  him,  they  could  not  be  introduced  in  evidence;  that 
he  could  not  recover  under  his  declaration,  which  was  in  the  usual 
form  in  trover,  under  the  proofs  in  the  case;  citing  the  following 
cases:  Draper  v.  Fletcher,  26  Mich.  154;  Rose  v.  Jackson,  40  ]\Iich. 
30;  Altman  v.  Fowler,  70  Mich.  57,  37  N.  W.  708;  Blackwood  v. 
Brown,  32  Mich.  104 ;  Cilley  v.  Van  Patten,  58  Mich.  404,  25  N.  W. 
326;  Dayton  v.  Fargo,  45  Mich.  153,  7  N.  W.  758.  These  cases 
do  not  apply.  In  replevin  and  trover  there  is  an  authorized  form  of 
declaration  for  each  action  which  is  ordinarily  used,  and  which  has 
been  held  sufficient  in  each  respectively.  These  declarations  do  not 
undertake  to  notify  defendant  of  the  nature  of  the  plaintiff's  title,  or 
what  are  the  evidences  of  it.  These  are  matters  of  evidence  merely.^* 
Harvey  v.  McAdams,  32  Mich.  472;  Myres  v.  Yaple,  60  Mich.  339, 
27  N.  W.  536;  Williams  v.  Paper,  67  Mich.  427,  34  N.  W.  890; 
Hutchinson  v.  Whitmore,  90  Mich,  255,  51  N.  W.  451,  30  Am.  St. 
Rep.  431.  The  judgment  of  the  circuit  court  is  affirmed,  with  costs. 
The  other  justices  concurred. 


BAKER  V.  MALONE  et  al. 
(Supreme  Court  of  Alabama,  1900.     126  Ala.  510,  28  South.  631.) 

Appeal  from  circuit  court,  Henry  county ;  J.  C.  Richardson,  Judge. 

Action  by  Joe  Baker,  Jr.,  against  Malone  &  Sons  for  damages  al- 
leged to  have  been  occasioned  by  defendants'  failure  as  warehousemen 
to  deliver  certain  property  intrusted  to  them.  From  a  judgment  for 
defendants,  plaintiff  appeals.     Affirmed. 

This  action  was  brought  by  the  appellant  against  the  appellees.  The 
complaint,  as  amended,  was  as  follows :  "The  plaintiff  claims  of  the 
defendants  the  sum  of  seventeen  hundred  and  fifty  dollars  damages 
for  that  defendants  were,  during  the  latter  part  of  the  year  1897  and 
first  part  of  the  year  1898,  engaged  in  the  business  of  storage,  com- 
pressing cotton,  and  keeping  the  same  for  shipment  or  forwarding, 
and  issued  their  receipts  for  cotton  so  coming  into  their  possession, 
and  the  delivery  thereof  to  the  compress ;  that  during  said  season  of 
1897-98  the  defendants  received  at  the  compress  of  Mr.  W.  P.'  Camp- 
bell sixty-six  bales  of  cotton,  giving  their  receipts  for  the  same;  that 
said  receipts  for  said  sixty-six  bales  of  cotton  were  delivered  by  the 
said  W.  P.  Campbell  to  the  cashier  of  the  Bank  of  Dothan,  as  security 
for  advances  made  by  said  Bank  of  Dothan  to  said  Campbell,  and 

11  Jones  V.  Winckworth,  Hardres,  111  (1658:  that  plaintiff  had  possession 
and  defendant  knew  he  owned  goods  sufficient  after  verdict) ;  Sevier  v.  Hol- 
liday,  2  Ark.  512,  576  (1840)  semble ;  Hasceig  v.  Tripp,  20  Mich.  216  (1870) ; 
Good  V.  Harnish,  13  Serg.  &  R.  (Pa.)  99  (1825:  same  as  Hardres,  111,  above) ; 
Hawkins  v.  Pearce,  11  Humph.  44  (1850).  Accord.  Wolfenbarger  v.  Standifer, 
3  Sneed  (Tenn.)  659  (1856).  Contra.  See,  further,  1  Chitty,  Pleading  (16th 
Am.  Ed.)  *394;    21  PI.  &  Pr.  1063. 


II 


Ch.  4)  TROVER  197 

also  to  secure  a  debt  due  the  plaintiff  in  this  action  by  said  Campbell ; 
and  that  in  February,  1898,  the  plaintiff  purchased  said  sixty-six  bales 
of  said  Campbell,  paying  the  Bank  of  Dothan  the  debt  of  Campbell 
to  them,  applying  the  balance  in  settlement  and  cancellation  of  the 
said  Campbell's  debt  to  plaintiff,  and  thereupon  received  control  and 
possession  of  the  receipts  for  said  sixty-six  bales  of  cotton,  and  on 
demand  of  said  cotton  of  the  defendants  they  failed  and  refused  to 
deliver  the  same  to  him,  to  his  damages  as  aforesaid."  The  defend- 
ants demurred  to  the  complaint  upon  the  following  grounds:  (1) 
Said  complaint  fails  to  allege  that  defendants  made  a  sale  of  the  cot- 
ton intrusted  to  them.  (2)  Said  complaint  fails  to  allege  that  defend- 
ants incumbered  or  transferred  said  cotton  with  [without?]  the  assent 
in  writing  of  the  person  to  whom  they  gave  the  receipt,  to  wit,  W. 
P.  Campbell,  or  the  legal  holder  of  such  receipts.  (3)  Said  complaint 
fails  to  allege  that  the  receipts  given  by  the  defendants  to  said  Camp- 
bell were  indorsed  by  said  Campbell  to  plaintiff.  (4)  Said  complaint 
fails  to  allege  facts  showing  that  ptaintiff  was  the  legal  holder  of  the 
receipts  mentioned  therein  at  tbe  time  he  made  demand  on  defendants 
for  said  cotton.  These  demurrers  were  sustained,  to  which  ruling 
the  plaintiff  duly  excepted.  The  plaintiff  declining  to  plead  further, 
judgment  was  rendered  for  the  defendants.  The  plaintiff  appeals,  and 
assigns  as  error  the  rulings  of  the  court  in  sustaining  the  demurrers 
to  the  complaint. 

McClelIvAN,  C.  J.  This  suit  is  by  Baker  against  Malone  &  Sons. 
The  complaint,  in  substance,  alleges  that  one  Campbell  stored  66  bales 
of  cotton  with  defendants  as  warehousemen,  and  took  their  receipts 
as  warehousemen  for  the  same ;  that  plaintiff  subsequently  purchased 
this  cotton  from  Campbell,  and  thereupon  received  possession  and 
control  of  said  receipts,  the  said  Campbell  delivering  them  to  him ; 
that  plaintiff  then  demanded  said  cotton  of  defendants,  but  that  they 
failed  and  refused  to  deliver  the  same  to  him,  whereby  plaintiff  was 
damaged  in  the  sum  of  $1,750,  for  which  he  sues.  Defendants  de- 
murred to  the  complaint,  the  demurrer  was  sustained,  and,  plaintiff 
declining  to  amend,  judgment  was  entered  for  defendants,  and  plain- 
tiff appeals. 

The  complaint  presents  no  cause  of  action  in  trover.  It  does  not 
aver  conversion  by  the  defendants.  Boiling  v.  Kirby,  90  Ala.  215,  7 
South.  914,  24  Am.  St.  Rep.  789-819,  note;  Davis  v.  Hurt,  114  Ala. 
146,  21  South.  468. 

The  legal  title  to  the  receipts  executed  by  defendants  was,  upon  the 
averments  of  the  complaint,  not  in  the  plaintiff,  because  they  had  not 
been  indorsed  to  him.  Code,  §  4222.  There  is  no  averment  that 
Campbell,  to  whom  the  receipts  were  issued,  had  assented  in  writing 
that  the  property  should  be  delivered  to  the  plaintiff.  There  being  no 
such  assent,  and  the  plaintiff  not  being  the  "legal  holder  of  the  re- 
ceipts," the  statute  expressly  forbade  the  defendants  to  deliver  the 
cotton  to  him.    Id.  §  4221. 


198  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

This  cannot  be  contorted  into  an  action  for  money  had  and  received, 
for  there  is  no  averment  that  there  had  been  a  sale  by  defendants,  and 
the  receipt  by  them  of  the  proceeds,  even  if  such  action  would  lie  on 
these  averments  with  those  already  in  the  complaint,  which  we  do  not 
decide.  We  therefore  concur  with  the  circuit  court  in  its  ruling  on 
demurrer,  and  its  judgment  for  the  defendants  must  be  affirmed.^^ 


DUGGAN  V.  WRIGHT. 

(Supreme  Judicial  Court  of  Massachusetts,  1892.     157  Mass.  228, 
32  N.  E.   159.) 

The  declaration  was  as  follows:  "And  the  plaintiff  says  that  de- 
fendant has  converted  to  his  own  use  one  meat  cart,  one  spring  wagon, 
one  meat  box-sleigh,  the  property  of  the  plaintiff." 

Exceptions  were  taken  to  the  admission  of  evidence  to  prove  the 
plaintiff's  right  to  the  goods  as  assignee  of  a  mortgage  covering  them, 
and  also  to  the  admission  of  evidence  to  prove  a  conversion  by  the 
defendant.     • 

Barker,  J.^'  1.  The  declaration  was  in  the  form  prescribed  by 
Pub.  St.  c.  167,  §  94,^*  for  trover,  and  is  sufficient  fo  allow  proof  of 
all  the  facts  necessary  to  maintain  an  action  of  that  nature.  The  al- 
legation that  the  defendant  has  converted  the  plaintiff's  property  to 
his  own  use  is  not  an  allegation  of  a  conclusion  of  law,  but  of  a  fact 
which  may  be  described  as  "composite,"  and  it  allows  evidence  to  be 
introduced  of  all  such  unjustified  dealing  with  the  property  named 
as  may  tend  to  show  a  wrongful  taking  and  disposal  of  it  to  the 
prejudice  of  the  plaintiff's  rights. ^^  Wells  v.  Connable,  138  Mass.  513. 
The  allegation  that  the  property  converted  was  the  property  of  the 
plaintiff  is  not  an  averment  that  the  plaintiff  was  the  absolute  owner, 
but  makes  admissible  any  evidence  showing  that  the  plaintiff  stood 
in  such  a  relation  to  the  property  that  she  had  a  right  to  maintain 
the  action. ^^  The  remedy  has  long  been  the  usual  one  employed  by 
mortgagees  of  personalty,  and  cannot  be  defeated  by  technical  objec- 

12  Cumnock  v.  Institution,  142  Mass.  342,  347,  7  N.  E.  869,  56  Am.  Rep. 
679  (ISSG) :  Steelman  v.  Nixon,  3  N.  J.  Law,  927  (1812).  Accord.  See,  fur- 
tlier,  21  PI.  &  Pr.  1074. 

13  Ttiis  short  statement  is  substituted  for.  the  more  extended  one  in  the 
report,  and  part  of  the  opinion  is  omitted. 

14  Statutory  forms  of  declaration  are  not  uncommon,  Leon  v.  Kerrison, 
47  Fla.  178,  36  South.  173  (1904) ;    Richardson  v.  Hall,  21  Md.  399,  404  (1864). 

IB  Richardson  v.  Hall,  21  Md.  399  (1864);  Smith  v.  Thompson,  94  Mich. 
381,  54  N.  W.  168  (1892) ;  Barron  v.  Davis,  4  N.  H.  338,  346  (1828)  semble. 
A.ccord.     See,  further,  21  PI.  &  Pr.  1077. 

16  Harvey  v.  McAdams,  32  ]\Iich.  472  (1875).  Accord.  Sevier  v.  HoUiday,  2 
Ark.  512,  576  (1840)  semble.  Contra. 

Other  allegations  stating  title  and  right  to  possession  to  be  in  the  plaintiff 
vvill  suffice.     Mount  v.  Cubberly,  19  N.  J.  Law,  124  (1842). 


Ch.  4)  TROVER  199 

tions  such  as  are  urged  by  the  defendant.  Alden  v.  Lincoln,  13  Mete. 
(Mass.)  204;  Robinson  v.  Sprague,  125  Mass.  582.  The  proof  of 
a  written  demand  was  evidence  of  a  subsidiary  fact  showing  conver- 
sion; and,  under  the  construction  given  to  the  statute  form  of  dec- 
laration in  trover  by  the  uniform  practice  of  the  courts,  was  properly 
admitted.  The  proof  of  a  mortgage  title  in  the  plaintiff  supported 
the  allegation  that  the  articles  converted  were  her  property,  and  was 
not  a  variance.  *  *  * 
Exceptions  overruled. 


ROYCE  et  al.  v.  OAKES. 
(Supreme  Court  of  Rhode  Island,  1897.     20  R.  I.  252,  38  Atl.  371.) 

Trespass  on  the  case  by  Royce,  Allen  &  Co.  against  Charles  H. 
Oakes.  On  defendant's  demurrer  to  declaration.  Overruled  as  to 
first  count,  and  sustained  as  to  second  count. 

TiLLiNGHAST,  J,^^  This  is  an  action  of  trespass  on  the  case,  in 
which  the  plaintiffs  set  out  in  the  first  count  of  their  declaration  that 
on  the  15th  day  of  January,  1894,  they  delivered  to  the  defendant  the 
sum  of  $1,714.60  in  money,  together  with  three  gross  of  napkin  rings, 
of  the  value  of  $49.26  (said  money  and  goods  being  the  property  of 
the  plaintiff),  for  safe-keeping,  and  to  be  redelivered  by  the  defend- 
ant to  the  plaintiffs  thereafterwards  on  the  same  day;  that  the  defend- 
ant received  said  money  and  merchandise  for  the  purpose  aforesaid, 
yet,  not  regarding  his  duty  in  that  behalf,  afterwards,  on  the  same 
day,  intending  and  contriving  to  injure  the  plaintiffs,  fraudulently  and 
unlawfully  converted  said  money  and  goods  to  his  own  use,  and,  al- 
though thereafterwards  duly  requested,  he  neglected  and  refused  to 

deliver  said  money  and  goods,  or  any  part  thereof,  to  the  plaintiifs. 
*     *     * 

We  think  the  demurrer  to  the  first  count  should  be  overruled ;  for, 
while  it  is  somewhat  inartificially  drawn,  yet  it  sufficiently  states  a  case 
in  trover,  which  is  a  species  of  action  on  the  case.  It  sets  out  prop- 
erty in  the  plaintiffs,  alleging  a  value  thereof,  together  with  the  con- 
version thereof  by  the  defendant  at  a  certain  time  and  place,  and  we 
think  this  is  sufficient;  for  while  it  is  customary  to  incorporate  into 
the  declaration  the  legal  fiction  that  the  plaintiff  casually  lost  ^^  the 
goods  and  chattels  described,  and  that  the  same  thereafterwards  came 
to  the  defendant's  hands  by  finding,^®  yet  we  think  it  is  sufficient  to 

17  Part  of  the  opinion  omitted. 

18  The  losing  is  not  essential.  Mayor  v.  Howard,  6  Ga.  213,  216  (1S49) 
semble.  Accord.     Y.  B.  21  &  22  Edw.  I,  4G6  (1294).  Contra. 

19  The  finding  is  not  essential.  Peters  v.  Johnson,  Minor  (Ala.)  100  (1S22) ; 
Mayor  v.  Howard,  6  Ga.  213,  216  (1849)  semble ;  Glenn  v.  Garrison,  17  N.  J. 
Law,  1  (1839)  semble.  Accord.  Sevier  v.  Holliday,  2  ink.  512,  576  (1840) 
semble.  Contra. 


200  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

allege  that  they  came  to  his  hands  generally,  the  conversion  being  the 
gist  of  the  action.  See  Oliv.  Free.  (3d  Ed.)  467;  Gen.  Laws  R.  I. 
c.  235,  §§  3,  4.     *     *     * 

The  demurrer  to  the  first  count  is  overruled,  the  demurrer  to  the 
second  count  is  sustained,  and  the  case  is  remitted  to  the  common 
pleas  division  for  further  proceedings. 


SECTION  3.— DEFENSES 


HURST  V.  COOK. 
(Supreme  Court  of  New   York,   1838.     19   Wend.   463.) 

Demurrer  to  a  plea  of  property  in  a  third  person  in  an  action  of 
trover.  The  plaintiff,  John  Hurst,  declared  in  trover,  for  the  taking 
and  conversion  of  certain  goods  and  chattels  belonging  to  him.  The 
defendant  pleaded  that  he  as  a  deputy  of  the  sheriff  of  Onondaga, 
by  virtue  of  two  executions  against  one  Thomas  Hurst,  for  the  pur- 
pose of  satisfying  the  same,  took  the  goods  and  chattels  specified  in 
the  declaration,  "the  same  then  and  there  being  the  property  of  the 
said  Thomas  Hurst."  To  which  plea  the  plaintiff  demurred,  assign- 
ing as  special  causes  of  demurrer,  that  the  plea  amounted  to  the  gen- 
eral issues.-" 

By  the  court,  Cowen,  J.  I  confess  I  supposed,  upon  the  argument, 
that  I  should  find  the  question  raised,  perfectly  disposed  of  by  cases 
in  this  court.  But  one  case  was  cited,  and  so  far  as  that  goes,  it  is 
against  the  plea.  It  was  sought  to  be  distinguished,  and  indeed 
brought  down  to  the  force  of  a  mere  dictum ;  and  it  was  insisted  that 
the  plea  is  maintainable  on  a  correct  understanding  of  the  authorities. 
Having  satisfied  himself  of  this,  the  counsel  went  back  to  Rockwood 
v.  Feasar,  Cro.  Eliz.  262,  and  The  Archbishop  of  Canterbury  v.  Kemp, 
Id.  539.  I  shall  notice  what  these  cases  are,  in  the  course  of  my 
remarks.  For  the  present  I  admit  that  the  first  case,  if  to  be  followed, 
will  sustain  not  only  this  plea,  but  any  imaginable  special  plea  amount- 
ing to  the  general  issue.  The  plea  was  an  argumentative  denial  both 
of  the  plaintiff's  property  and  of  an  illegal  conversion  by  the  defend- 
ant— the  whole  matter,  and  nothing  but  the  matter  involved  in  the 
general  issue.  In  the  second  the  plea  was  to  the  same  effect,  but  the 
point  was  not  raised,  for  the  plaintiff  replied.  It  was  the  more  sur- 
prising to  hear  so  late  an  authority  as  Wingfield  v.  Stratford,  1  Wils. 
315,  cited  to  the  same  point,  but  the  report  there  is  probably,  as  we 
shall  see  hereafter,  imperfect,  and  in  any  view  far  from  being  an 
authority  for  the  defendant.     As  the  case  stands  in  Wilson,  nothing 

20  The  form  of  the  general  issue  is  the  same  as  in  case. 


11 


Ch,  4)  TROVER  201 

is  said  of  the  point  before  us;    but  there  is  more  in  it  than  I  could 
have  supposed. 

It  must  be  admitted  that  the  books  are  studded  with  special  pleas 
in  the  action  of  trover,  even  such  as  show  that  the  plaintiff  never  had 
any  cause  of  action.  They  set  up  either  property  out  of  the  plaintiff, 
or  admit  that  it  belonged  to  him,  and  insist  that  the  defendant  law- 
fully took  and  converted  it :  as  that  he  distrained  or  took  it  in  execu- 
tion, or  that  he  never  did  convert  the  property,  and  the  like.  Many 
such  pleas  have  passed  without  being  met  by  a  special  demurrer.  Of 
course  the  courts  felt  bound  to  consider  them.  Such  was  the  case  of 
Kenicot  v.  Bogan,  Yelv.  198*  a  plea  that  the  defendant  seized  the 
plaintiff's  wine  as  king's  butler;  The  Archbishop  of  Canterbury  v 
Kemp,  Cro.  Eliz.  539,  a  plea  of  title  in  the  defendant ;  Robinson  v. 
•Walter,  3  Bulst.  269,  and  Stert  v.  Drungold,  Id.  289,  pleas  of  deten- 
tion by  an  innkeeper  of  the  goods  of  his  guest ;  Wingfield  v.  Stratford, 
1  Wils.  315,  seizing  a  gun  as  gamekeeper.  But  Bull.  N.  P.  314,  says, 
as  we  shall  see,  that  the  court  held  this  bad,  as  being  equivalent  to  the 
general  issue.  Taylor  v.  Chambers,  Cro.  Jac.  68,  was  a  plea  of  pur- 
chase in  market  overt;  Comyns  v.  Boyer,  Cro.  Eliz.  485,  a  like  plea, 
(and  see  Golds.  54;)  Priestly  v.  White,  Yelv.  173,  a  plea  of  property 
in  the  defendant;  Anon,  Id.  174,  cited,  S.  P.;  Anon,  2  Leon.  13,  a 
plea  that  the  goods  were  bailed  to  the  defendant,  to  deliver,  which  he 
had  done,  and  traversing  the  conversion ;  Strangden  &  Burnell's  Case, 
Godb.  137,  a  plea  that  the  plaintiff  gave  goods  to  the  defendant  and 
traversing  the  conversion  in  the  place  where  it  was  laid  by  the  dec- 
laration, (4  Leon.  4,  and  106,  S.  C. ;)  Court  v,  Blackman,  Noy's  R. 
109,  a  like  case;  Markham  &  Pitt's  Case,  3  Leon.  205,  that  the  plain- 
tiff was  outlawed.  The  plea  in  Gaillard  &  Archer's  Case,  1  Leon.  189, 
was  possession  of  the  plaintiff's  goods  by  A.  and  sale  to  the  defendant 
without  notice,  and  held  bad  in  substance.  So  in  Davies'  Case,  Cro. 
Eliz.  611,  of  a  plea  that  the  defendant  took  the  goods  as  a  waif ;  in 
Gomendale  v.  Wyats,  Cro.  Jac.  255,  of  a  plea  of  distress  under  a 
plaint  in  the  manor  court,  (Yelv.  194,  S.  C,  titled  Gomersall  v.  Med- 
gate;)  in  Holman  v.  Karwithy,  2  Bulstr.  134,  of  a  plea  of  finding 
without  traversing  property  in  the  plaintiff,  and  White  v.  Price,  (cited 
there  at  page  135,  S.  P. ;)  Sparrow  v.  Sherwood,  Poph.  208,  a  jus- 
tification by  command,  pleaded  imperfectly;  Bush  v.  Luxburrough, 
1  Roll.  R.  396,  a  traverse  of  the  venue  improperly  interposed,  (and 
see  per  Popham,  J.,  Goldsb.  155.) 

Some  cases  assume  that  a  special  plea  may  be  properly  interposed, 
if  it  confess  part  of  the  plaintiff's  case ;  as  in  Dee  v.  Bacon,  Cro. 
Eliz.  435,  which  was  a  plea  of  taking  damage  feasant,  and  held  bad 
because  it  did  not  confess  the  conversion.  Agar  &  Lisle,'  Hob.  187, 
was  a  plea  of  distress  for  market-toll,  held  bad  for  the  same  reason ; 
Salter  v.  Butler,  Noy's  R.  46,  was  a  plea  of  distress  for  rent,  held 
bad  for  the  same  reason ;  and  Kinnersley  v.  Barnard,  Cro.  Eliz.  554, 
was  a  plea  traversing  a  conversion,  but  of  the  wrong  thing.    Hartford 


202  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

V.  Jones,  2  Salk.  654,  was  a  plea  of  seizure  as  wreck,  and  detaining 
till  paid  for  the  pains,  and  held  bad  because  it  did  not  confess  a  con- 
version.    (1  Ld.  Raym.  393,  S.  C.     3  Salk.  366,  S.  C.) 

Several  special  pleas  of  a  like  character  have  been  countenanced 
and  directly  sustained  by  the  courts  on  demurrer,  assigning  for  a 
cause  that  they  amounted  to  the  general  issue.  Such  is  Kinnersley 
V.  Barnard,  Cro.  Eliz.  554,  the  case  of  a  plea  admitting  property  in 
the  plaintiff  and  specially  traversing  the  conversion  with  an  absque 
hoc;  Hill  v.  Hawkes,  1  Roll.  R.  1,  44,  justifying  the  taking  by  force 
of  a  custom;  (2  Bulst.  201,  S.  C.  and  S.  P.;  Moore,  835,  S.  C.  but 
not  S.  P.)  Such  is  Rockwood  v.  Feasar,  Cro.  Eliz.  262,  a  plea  of 
property  out  of  the  plaintiff,  and  in  one  J.  S.,  by  whose  command  the 
defendant  took  it,  giving  color  and  showing  that  the  plaintiff  had  title 
against  all  except  J.  S.  I  repeat  the  admission  before  made,  that  if 
the  last  case  be  law,  it  exactly  sustains  the  plea  in  the  case  at  bar. 
Both  of  them  deny  the  plaintiff's  property  and  an  illegal  conversion. 
In  Strausham's  Case,  Cro.  Eliz.  98,  Coke,  J.,  mentions  special  pleas 
in  trover  as  admissible,  and  among  others  a  taking  damage  feasant. 
In  Bisse  &  Tyler's  Case  Godb.  267,  13  Jac.  it  was  put  with  a  query 
whether  a  plea  of  a  sale  by  the  plaintiff  to  the  defendant  were  bad  as 
amounting  to  the  general  issue,  and  according  to  a  report  of  the  same 
case  in  1  Roll.  R.  173,  the  plea  was  thought  good. 

Most  of  the  cases,  however,  ancient  and  modern,  have  overruled 
such  pleas,  on  the  point  of  their  sufficiency  being  raised  by  special 
demurrer,  assigning  for  cause  that  they  amounted  to  the  general  issue. 
Such  was  Bellamy  v.  Balthrop,  Latch.  184,  the  case  of  a  plea  giving 
color  to  the  plaintiff,  but  showing  property  out  of  him ;  and  Styles 
V.  Snelgrave,  (there  cited,  S.  P.;)  Ward  v.  Blunt,  Cro.  Eliz.  146, 
a  plea  showing  title  in  the  defendant,  but  giving  color  to  the  plaintiff; 
Ascue  v.  Saunderson,  Cro.  Eliz.  433,  plea  of  a  levy  on  the  plaintiff's 
goods  as  sheriff  under  a  fi.  fa.  against  them;  Wingfield  v.  Stratton, 
Bull.  N.  P.  48,  a  plea  that  the  defendant  seized  the  gun  as  game- 
keeper, the  point  of  form  not  being  noticed  by  the  report  in  1  Wils. 
314,  S.  C.  as  mentioned  before;  Webb  v.  Fox,  7  T.  R.'387,  a  plea 
of  the  plaintiff's  bankruptcy,  which  showed  title  out  of  him  and  in 
his  assignees,  (per  Ed.  Kenyon,  Ch.  J.,  Id.  392 ;)  Lynner  v.  Wood, 
Cro.  Car.  157,  a  plea  that  the  defendant  took  the  goods  as  tithes  sev- 
ered;  Bullock  v.  Smith,  Cro.  Eliz.  174,  a  plea  of  seizure  as  waif; 
Austin  V.  Austin,  Cro.  Jac.  319,  a  plea  of  title  in  the  defendant,  giv- 
ing color;  Lord  Mounteagle  v.  The  Countess  of  Worcester,  2  Dyer, 
121,  a,  a  declaration  alleging  a  conversion  by  a  sale,  and  plea  trav- 
ersing the  sale,  per  Rockbey,  J. ;  Kennedy  v.  Strong,  10  Johns.  289, 
pleas  of  sale  by  order  of  the  plaintiff's  partner;  but  the  pleas  were 
also  held  bad  on  other  grounds  besides  that  of  their  being  equivalent 
to  the  general  issue. 

The  most  ancient  cases  seem  to  be  against  this  plea,  Brooke,  in  his 
Abr.  Action  Sur  le  Case,  pi.  113,  cites  the  year  book,  4  E.  6,  and  at 


I 


Ch.  4)  TROVER  203 

pi.  109,  he  cites  33  H.  8,  to  that  effect.  The  cases  of  Whittaker  v. 
Collet,  1  Roll.  R.  22,-  Row  v.  Thompson,  1  Roll.  R.  197,  and  Phillips 
V.  Wickes,  3  Bulstr,  209,  may  also  be  added  to  the  cases  before  cited 
as  directly  against  the  like  pleas;  and  see  also  Vandrick  and  Archer's 
Case,  1  Leon.  221. 

At  a  time  when  the  judgments  at  Westminster  Hall  stood  in  singu- 
lar conflict,  and  their  reasoning  and  dicta  on  the  subject  of  these 
special  pleas  in  trover  exhibited  contradictions  and  subtleties  no  less 
extraordinary,  as  may  be  seen  on  a  still  closer  examination  of  the 
cases,  the  courts  adopted  and  have  since  steadily  pursued,  if  they 
have  not  extended,  the  doctrine  of  that  line  of  authority  which,  taken 
together,  was  found  to  repudiate  all  special  pleas  in  trover  going  to 
the  original  cause  of  action.  As  early  as  Bellamy  v.  Balthrop,  before 
cited,  (2  Car.)  Jones,  J.,  said,  that  in  trover  every  special  plea  with 
color  amounts  only  to  the  general  issue;  and  in  14  Car.  Devoe  v. 
Coridon,  1  Keb.  305,  Twisden,  J.,  said:  "There  is  no  plea  in  trover 
but  a  release  or  not  guilty."  In  Anon,  Lofft's  R.  323,  13  Geo.  3, 
on  a  motion  to  plead  several  matters  in  trover,  the  court  said,  "by 
a  book  near  two  centuries  ago,  it  appears  release  is  a  sufficient  plea 
to  trover,  and  you  have  no  need  to  plead  anything  more.  In  Hart- 
ford V.  Jones,  Holt,  Ch.  J.,  said  he  never  knew  but  one  special  plea 
good  in  trover,  viz.  Yelv.  198.  In  the  same  case  (1  Ld.  Raym.  868,) 
he  is  made  to  say  he  never  knew  but  one  special  plea  good  in  tro- 
ver besides  that  in  Yelv.  and  that  was  a  release.  In  Yorke  v.  Gre- 
naugh,  2  Ld.  Raym.  868,  he  said  nothing  can  be  pleaded  specially 
in  trover  but  a  release.  See  Allen  v.  Harris,  2  Lutw.  650,  where 
the  right  to  plead  a  release  was  conceded.  And  BuUer's  report  of 
Wingfield  v.  Stratford  says  it  was  holden  by  the  whole  court  in 
that  case,  that  there  could  be  no  special  plea  in  trover  but  a  release. 
1  Danv.  Abr.  25,  S.  P.  Such  a  limit  is  probably  too  narrow;  but 
special  pleas  in  trover  have  met  with  much  discouragement  in  the  la- 
ter cases.  In  Webb  v.  Fox,  before  cited.  Lord  Kenyon,  Ch.  J.,  said 
he  could  not  commend  the  mode  in  which  the  question  was  brought 
before  the  court,  as  the  plea  would  be  attended  with  unnecessary 
expense  to  the  parties,  (7  T.  R.  392;)  and  in  Kennedy  v.  Strong,  also 
before  cited,  this  court  said  special  pleas  in  trover  are  deservedly 
discountenanced,  (10  Johns.  291.)  It  is  said  in  1  Chit.  Plead.  490, 
that  the  statute  of  limitations  and  a  former  recovery  may  be  pleaded; 
and  such  pleas  were  interposed  without  question,  the  former  in  Cow- 
per  V.  Towers,  1  Lutw.  97,  99,  and  the  latter  in  Lethmere  v.  Top- 
lady,  1  Show.  146;  2  Ventr.  169,  S.  C,  cases  cited  by  Chitty,  though 
in  neither  was  the  plea  tested  by  a  special  demurrer.  See,  also, 
Lacon  v.  Bernard,  Cro.  Car.  35,  and  Peet  v.  Rawsterne,  T.  Raym. 
472,  and  2  Ld.  Raym.  1217.  Buller's  N.  P.  49,  agrees  that  a  for- 
mer recovery  may  be  pleaded:  and  a  highly  respectable  American 
court  held  that  the  statute  of  limitations  must  be  pleaded,  and  cannot 
■be  given  in  evidence  under  the  general  issue.     Nott,  J.,  said  this  is 


2U4  PLEADINGS   IN   TORT   ACTIONS  (Part    I 

perfectly  well  settled,  (Jones  v.  Dugan,  1  McCord  [S.  C]  428;)  and 
so  it  seems  to  be  in  respect  to  various  actions  on  the  case  besides 
trover.  Ballantine  on  Lim.  by  Tillingh.  c.  16,  p.  207,  et  seq.,  and 
the  cases  there  cited. 

It  is  also  said  in  1  Chitty's  PI.  490,  that  the  defendant  may,  in 
trover,  plead  anything  specially  which  admits  property  in  the  plain- 
tiff and  a  conversion  by  the  defendant.  I  think  he  might  have  added 
that  a  special  plea  showing  either  property  out  of  the  plaintiff  or 
that  there  was  no  conversion,  or  both,  would  be  bad  on  special  de- 
murrer, as  amounting  to  the  general  issue.  It  may  be  taken  as  the 
clear  result  of  the  more  numerous  cases,  including  the  modern  author- 
ities, of  the  course  of  which  this  court  strongly  intimated  its  appro- 
bation in  Kennedy  v.  Strong,  that  a  special  plea  showing  there  never 
was  an  unlawful  conversion  of  the  plaintiff's  property,  or  in  other 
words,  that  he  never  had  any  cause  of  action,  is  bad  in  form.  But 
where  the  plea  admits  that  there  cace  was  a  cause  of  action,  and 
sets  up  subsequent  matter  in  discharge  or  avoidance,  it  may  be  pleaded 
specially.  The  general  issue  is,  not  guilty  of  the  premises,  &c.  In 
good  sense,  this  denies  all  which  the  plaintiff,  in  legal  effect,  alleges 
in  his  declaration,  viz.,  property  in  himself  and  an  illegal  conversion 
by  the  defendant.  The  evidence  on  such  an  issue,  so  long  as  it  is 
confined  to  the  original  cause  of  action,  comes  literally  within  the 
scope  of  the  pleadings,  as  remarked  by  King,  Clf.  J.,  in  regard  to 
other  actions  on  the  case:  "Everything  which  shows  that  the  de- 
fendant did  what  he  might  do,  may  be  given  in  evidence  upon  not 
guilty  pleaded;  for  that  proves  he  had  done  no  injury."  Anon,  Com. 
Rep.  274.  It  is  not  necessary  to  say  that  the  defendant  must  plead 
even  matter  in  discharge  or  avoidance.  We  know  that  generally  he 
need  not,  though  he  may  do  so  in  actions  of  assumpsit,  and  especially 
in  other  actions  on  the  case.  1  Chitty's  PI.  486,  and  the  cases  there 
cited.  I  have  noticed  the  statute  of  limitations  as  a  defence,  which 
it  is  said  must  be  pleaded.  So  of  justification  in  slander.  But  I  do 
not  now  remember  any  other  exception  to  the  rule  that,  in  an  action 
on  the  case,  every  matter  of  defence  may  be  received  under  the  plea 
of  not  guilty.  In  Bird  v.  Randall,  3  Burr.  1353,  1  Black.  Rep.  288, 
S.  C,  Lord  Mansfield  made  no  exception.  Of  course  I  speak  of 
pleas  in  bar,  not  in  abatement. 

So  many  old  cases  occurring  which  certainly  do  go  to  sustain  the 
plea  in  the  principal  case,  I  have  taken  some  pains  to  discover  how 
they  have  been  met  and  overturned,  if  such  were  the  fact.  I  encoun- 
tered more  labor  from  not  being  able  to  find  that  the  matter  had  been 
systematically  taken  up  by  any  author.  I  may  have  failed  to  find 
some  material  cases,  but  as  far  as  I  have  examined,  I  feel  well  sat- 
isfied with  the  results,  already  expressed;  and  at  least,  that  author- 
ity, reason,  and  convenience,  all  concur  against  the  plea  in  question. 
The  best  collection  of  the  old  authorities  is  to  be  found  in  Vin.  Abr. 
Actions  of  Trover,  &c.,  L.  5,  Trover,  Plea,  vol.  1,  p.  254,  et  seq.    The 


Ch.  4)  TROVER  205 

remark  in  Petersdorf's  Abr.  Trover,  PI.  5,  (B.,)  Plea,  note,  that  the 
defendant  may  plead  any  matter  which  admits  the  conversion,  and 
that  the  property  is  in  the  plaintiff,  but  justifies  the  former,  I  am 
satisfied  is  wrong.  See  accordingly,  Bac.  Abr.  Trover,  (F.)  pi.  2,  of 
the  plea. 

I  presume  the  general  issue  has  been  pleaded,  though  very  prop- 
erly omitted  in  the  demurrer  book.  If  so,  no  amendment  is  necessary. 
If  otherwise,  the  defendant  may  now  add  the  general  issue. 

Judgment  for  the  plaintiff.^^ 

21  The  uncertainty  existing  in  the  early  cases  still  persists  to  a  considerable 
extent.     The  citations  in  the  following  paragraphs  are  typical. 

All  questions  concerning  the  possession,  right  to  possession,  or  title  to  the 
goods  may  be  entered  upon  under  not  guilty.  Fields  v.  Brice,  lOS  Ala.  632, 
18  South.  742  (1895);  Vaden  v.  Ellis,  18  Ark.  355  (1857);  Gates  v.  Thede, 
91  111.  App.  603  (1900) ;  Graham  v.  Warner,  3  Dana  (Ky.)  146,  28  Am.  Dec. 
65  (1835)  ;  Foye  v.  Patch,  132  Mass.  105  (1882) ;  Trust  Co.  v.  Hardwood  Co., 
74  Miss.  584,  593  (1896)  semble ;  Sylvester  v.  Girard,  4  Rawle  (Pa.)  185 
(1833);  Winlack  v.  Geist,  107  Pa.  297,  300,  52  Am.  Rep.  473  (1884)  semble. 
Accord.  In  Florida  by  Cir.  Ct.  Com.  Law  Rule  No.  75  the  law  is  contra. 
Robinson  v.  Hartridge,  13  Fla.  501,  508  (1809-71) ;  Anderson  v.  Agnew  & 
Co.,  38  Fla.  30,  38,  20  South.  766  (1896).  Probably  special  pleas  raising  any 
question  as  to  possession,  right  to  possession,  or  title  would  be  bad  in  form. 
Coffin  V.  Anderson,  4  Blackf,  (Ind.)  395  (1837);  Turner  v.  Waldo,  40  Vt.  51 
(1867)  semble.  Accord.     Vaden  v.  Ellis,  18  Ark.  355,  359  (1857)  semble.  Contra. 

That  the  facts  constituting  a  prima  facie  conversion  may  be  overthrown 
under  a  plea  of  not  guilty  seems  never  to  have  been  disputed.  A  special 
plea  denying  such  facts  would  be  bad.  Coffin  v.  Anderson,  4  Blackf.  (Ind.) 
395  (1837). 

Matters  in  excuse  may  be  proved  under  not  guilty.  Barrett  v.  City,  129 
Ala.  179,  185,  30  South.  36,  87  Am.  St.  Rep.  54  (1900:  justification  as  health 
officer)  semble;  Jones  v.  Buzzard,  2  Ark.  415,  442  (1840:  legal  process); 
Hart  v.  Hart,  48  Mich.  175,  12  N.  W.  33  (1882:  consent:  compare  Cir.  Ct. 
Rule  No.  7  referred  to  below) ;  Eirew  v.  Spaulding,  45  N.  H.  472  (1864 :  de- 
fense of  property) ;  Briggs  v.  Brown,  3  Hill  (N.  Y.)  87  (1842 :  distress  for 
rent) ;  Knapp  v.  Miller,  133  Pa.  275,  283,  19  Atl.  555  (1890 :  defense  of  prop- 
erty) ;  Pemberton  v.  Smith,  3  Head  (Tenn.)  IS  (1859 :  legal  process) ;  Turner 
V.  Waldo,  40  Vt.  51  (1807:  estoppel).  In  INIichigan,  Cir.  Ct.  Rule  No.  7  re- 
quires notice  of  all  affirmative  defenses.  Under  this  rule  the  court  has  held 
that  the  defense  of  legal  process  cannot  be  proved  under  not  guiltv  without 
special  notice.  Wait  v.  Kellogg,  63  Mich.  138,  144,  30  N.  W.  80  (1886);  Hine 
v.  Bank.  119  Mich.  448,  78  N.  W.  471  (1899).  But  the  court  has  refused  to 
apply  this  rule  unless  the  plaintiff's  title  is  specifically  set  forth  in  the  dec- 
laration. Eureka  Works  v.  Bresnahan,  66  Mich.  489,  33  N.  W.  834  (1887) : 
Williams  v.  Brown,  137  Mich.  569,  100  N.  W.  786  (1904).  Probably  the  com- 
moner view  is  with  the  principal  case  that  matter  in  excuse  cannot  be  spe- 
cially pleaded.  Briggs  v.  Brown,  3  Hill  (N.  Y.)  87  (1842:  distress  for  rent); 
Spalding  v.  Preston,  21  Vt.  9,  50  Am.  Dec.  68  (1848 :  right  as  officer  to  retain 
evidence  of  a  crime)  semble;  Turner  v.  Waldo,  40  Vt.  51  (1867:  estoppel^ 
Accord.  Hopkinson  v.  Shelton,  37  Ala.  306  (1861 :  legal  process :  on  ground, 
erroneous  possibly,  that  statute  had  changed  the  rule) ;  Carey  v.  Dazey,  5  Har. 
(Del.)  44^  (1854:    distress  damage  feasant).  Contra. 


206  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

MILLER  et  al.  v.  MANICE. 
(Court  of  Errors  of  New  York,  1843.     6  Hill,  114.) 

Action  of  trover  for  the  conversion  of  three  promissory  notes.  The 
general  issue  was  the  only  plea.  The  defendant  offered  evidence  tend- 
ing to  prove  that  the  plaintiffs  had  previously  brought  an  action  of 
assumpsit  against  him  and  two  other  defendants  and  that  they  had 
failed  in  that  suit  to  recover  the  amount  of  these  three  notes. ^^ 

After  the  introduction  of  the  above  evidence  in  respect  to  the  former 
suit,  and  some  additional  testimony,  the  parties  rested.  The  circuit 
judge  thereupon  charged  the  jury  in  substance  as  follows,  viz:  "That 
a  prior  judgment  was  admissible  under  the  general  issue,  in  an  action 
of  trover,  with  the  like  effect  as  if  pleaded ;  that  the  question  whether 
the  matter  now  in  issue  had  been  before  adjudicated,  was  a  question 
of  law  for  the  decision  of  the  court;  that  in  judgment  of  law  the 
question  of  Manice's  liability  was  determined  in  the  suit  brought  in 
the  superior  court  against  Manice,  Phelps  and  Foote;  and  that  the 
said  suit  was  a  complete  bar  to  the  plaintiff's  recovery  in  this  suit." 
Verdict  in  favor  of  Manice.  The  plaintiffs  afterwards  moved  the 
supreme  court  for  a  new  trial  on  a  bill  of  exceptions,  but  the  motion 
was  denied  and  judgment  rendered  against  them;  whereupon  they 
brought  error  to  this  court. 

Walworth,  Chancellor,  after  concluding  that  the  former  judgment 
would  not  bar  this  suit  no  matter  how  pleaded,  proceeded  as  fol- 
lows :  ^^ 

Again,  it  appears  to  be  pretty  well  settled  that  in  actions  of  as- 
sumpsit, where  any  thing  which  shows  that  the  plaintiff  has  no  sub- 
sisting right  of  action  may  be  given  in  evidence  under  the  general 
issue,  a  former  verdict  and  judgment  may  be  given  in  evidence  with- 
out being  pleaded.  Young  v.  Black,  7  Cranch,  565,  3  L.  Ed.  440 ; 
Kilheffer  v.  Herr,  17  Serg.  &  R.  (Pa.)  322,  17  Am.  Dec.  658;  Wood 
V.  Jackson,  8  Wend.  9,  22  Am.  Dec.  603.  But  it  does  not  appear  to 
be  perfectly  settled  in  England  that  the  former  recovery,  when  given 
in  evidence  under  the  general  issue  in  assumpsit,  where  it  might  have 
been  pleaded,  is  conclusive  as  a  flat  bar,  as  it  would  have  been  if  plead- 
ed in  bar  of  the  second  suit.  See  Stafford  v,  Clark,  1  Car.  &  Payne, 
403 ;  9  J.  B.  Moore,  724,  S.  C.  The  cases  in  which  the  courts  in  this 
state  and  in  England  have  held  the  former  verdict  and  judgment 
conclusive  as  a  bar,  when  given  in  evidence  without  being  pleaded, 
are  those  in  which  the  party  insisting  upon  the  estoppel  has  had  no 

22  This  short  statement  Is  substituted  for  a  more  extended  one  in  the  re- 
port. 

2  3  This  statement  is  substituted  for  the  portion  of  the  opinion  in  which 
the  above  conclusion  was  reached. 


Ch.  4)  TROVER  207 

opportunity  to  plead  it;  as  in  an  action  of  ejectment,  where  special 
pleading  is  not  allowed,  (Wood  v.  Jackson,  8  Wend.  35,  22  Am.  Dec. 
603,)  or  in  cases  where  the  plaintiff's  own  title  is  by  estoppel,  and  the 
defendant,  by  his  pleading,  does  not  give  him  an  opportunity  to  re- 
ply the  estoppel,  (Wright  v.  Butler,  6  Wend.  284,  21  Am.  Dec.  323; 
Burt  V.  Sternburgh,  4  Cow.  559,  15  Am.  Dec.  402). 

The  general  rule,  however,  unquestionably  is,  that  where  the  party 
in  whose  favor  the  former  verdict  and  judgment  were  rendered,  wish- 
es to  rely  on  them  as  a  conclusive  bar,  or  as  an  estoppel,  he  must 
plead  such  former  judgment  in  bar,  if  he  has  an  opportunity  to  do 
so.  And  if  he  neglects  to  set  it  up  by  pleading,  and  puts  the  same 
matter  again  in  issue  to  be  tried,  the  jury  may  decide  such  issue 
according  to  the  right  and  justice  of  the  case  as  it  appears  to  them 
from  the  evidence,  notwithstanding  the  verdict  and  judgment  in  the 
former  suit.  Trevivan  v.  Lawrence,  1  Salk.  276 ;  Outran  v.  More- 
wood,  3  East,  346;  Howard  v.  Mitchell,  14  Mass.  241;  Kilheffer 
v.  Herr,  17  Serg.  &  R.  (Pa.)  319,  17  Am.  Dec.  658.  Bird  v.  Randall, 
3  Burr.  1345,  was  not  a  case  of  estoppel,  but  of  a  former  recovery 
against  a  third  person,  for  the  'same  demand.  A  former  recovery 
against  the  defendant  for  the  same  debt  or  claim  must  necessarily 
be"  an  absolute  defence  to  a  second  suit  for  the  same  cause,  whenever 
it  can  be  given  in  evidence  under  the  general  issue.  But  I  have  not 
been  able  to  find  any  decision,  either  in  the  courts  of  this  country 
or  of  England,  in  which  an  action  of  trover,  or  a  special  action  of 
the  case,  has  been  held  to  form  an  exception  to  the  general  rule  that, 
to  make  a  mere  estoppel  a  flat  bar  in  a  second  suit,  it  must  be  pleaded. 
On  the  contrary,  I  find  that  this  general  rule  has  in  England  been  ap- 
plied to  actions  on  the  case  as  well  as  to  other  actions.  Vooght  v. 
Winch,  2  Barn.  &  Aid.  662 ;  Hooper  v.  Hooper,  McClel.  &  Younge, 
509.  And  the  court  whose  decision  we  are  now  considering,  in  a 
recent  case,  appears  to  have  conceded  that  a  former  recovery  may  be 
pleaded  in  bar  to  an  action  of  trover.  See  Briggs  v.  Brown,  3  Hill, 
87. 

The  judge  who  tried  this  cause  was  therefore  wrong  in  holding  the 
record  of  the  former  verdict  and  judgment  an  absolute  bar  when 
given  in  evidence  under  the  general  issue,  where  the  defendant  might 
have  pleaded  it  as  an  estoppel,  if  the  former  suit  was  in  fact  for  the 
same  matter. 

For  these  reasons  the  law  as  well  as  the  justice  of  this  case  is  with 
the  plaintiffs  in  error;  and  the  judgment  of  the  court  below  should 
be  reversed. 

Putnam,  Senator.-*  The  first  question  which  arises  in  this  case 
is,  whether  the  evidence  respecting  the  former  suit  was  -admissible 
under  the  general  issue.     The  rule  is  well  established  thai  in  actions 

2*  Tlie  opinion  of  Senator  Bockee  is  omitted. 


208  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

of  trover  the  defendant  may  give  in  evidence  any  defence  under  a 
plea  of  the  general  issue,  except  the  statute  of  limitations,  and  per- 
haps a  release.  Many  authorities  might  be  cited  to  sustain  this  po- 
sition, but  I  will  only  refer  to  the  case  of  Young  v.  Rummell,  2  Hill, 
478,  481,  38  Am.  Dec.  594,  vv^here  the  supreme  court  laid  down  the 
doctrine  as  follows :  "A  former  recovery  in  which  the  same  matter 
was  tried  upon  the  merits,  between  the  same  parties,  may  be  given 
in  evidence,  without  being  specially  pleaded,  wherever  the  party, 
whether  plaintiff  or  defendant,  had  no  opportunity  to  plead  the  re- 
covery specially.  For  example,  the  defendant  may  give  the  judgment 
in  evidence  under  not  guilty  in  ejectment  and  trover — no  other  plea 
being  allowed  in  those   actions." 

When  a  former  suit  is  properly  received  in  evidence  under  the  gen- 
eral issue,  I  think  it  should  be  just  as  conclusive  in  all  cases  as  though 
the  defendant  had  pleaded  the  matter  specially.  The  decisions  on 
this  subject  present  a  greater  diversity  of  judicial  opinion  than  has 
existed  in  respect  to  almost  any  other  question ;  some  of  them  hold- 
ing that  if  the  defendant  omit  to  plead  the  former  suit  specially,  where 
he  has  an  opportunity  of  so  doing,  it  is  not  conclusive,  but  only  evi- 
dence for  the  consideration  of  the  jury,  which  they  may  disregard; 
while  others  hold  that  the  effect  of  the  former  suit  depends  in  no 
degree  upon  the  time  or  manner  of  bringing  it  forward,  but  upon 
the  general  doctrine  of  res  judicata.  The  latter  is  obviously  the  view 
taken  of  the  question  by  Chief  Justice  De  Grey,  in  delivering  the 
unanimous  opinion  of  the  judges  on  the  trial  of  the  Duchess  of  Kings- 
ton, 20  How.  St.  Tr.  537,  538.  He  there  said,  "that  the  judgment 
of  a  court  of  concurrent  jurisdiction  directly  upon  the  point,  is  as 
a  plea,  a  bar,  or  as  evidence,  conclusive,  between  the  same  parties, 
upon  the  same  matter,  directly  in  question  in  another  court."  This 
rule  was  especially  recognized  and  acted  upon  in  Gardner  v.  Buck- 
bee,  3  Cow.  120,  15  Am.  Dec.  256,  and  that  case  has  been  regarded 
as  law  ever  since.  The  action  was  originally  brought  in  the  common 
pleas  to  recover  upon  one  of  two  notes  given  to  the  plaintiff  on  the 
purchase  of  a  schooner,  and  the  defendant  set  up  fraud  in  the  sale. 
It  appeared  that  the  plaintiff  had  previously  attempted  to  recover  upon 
the  other  note  in  the  marine  court,  but  the  same  defence  was  inter- 
posed, and  the  defendant  obtained  judgment.  On  the  trial  of  the 
second  suit  the  record  of  the  judgment  was  given  in  evidence  under 
the  general  issue,  together  with  a  parol  proof  to  identify  the  matters 
litigated ;  the  defendant  insisting  that  the  judgment  was  a  bar.  The 
common  pleas  decided  that  the  evidence  was  admissible,  and  allowed 
it  to  go  to  the  jury,  in  connection  with  the  other  proof  of  the  alleged 
fraud,  for  their  consideration ;  but  expressly  instructed  them  that 
the  former  judgment  was  not  conclusive.  The  supreme  court  held 
the  charge  to  be  erroneous,  saying:  "The  judge  ought  to  have  charged 
that  if,  from  the  evidence,  they  were  satisfied  the  matters  in  question 


Ch.  4)  TROVBB  200 

had  been  passed  upon  in  the  marine  court,  the  record  was  conclusive." 
The  case  of  Burt  v.  Sternburgh,  4  Cow.  559,  15  Am.  Dec.  403,  is 
to  the  same  effect.  In  Wood  v.  Jackson,  8  Wend.  24,  25,  22  Am.  Dec. 
603,  Chief  Justice  Savage  observed  that  the  decisions  had  not  been 
uniform,  and  he  expressed  a  doubt  as  to  where  the  weight  of  authority 
lay.  But  in  Lawrence  v.  Hunt,  10  Wend.  83,  84,  25  Am.  Dec.  539, 
Nelson,  J.,  evidently  inclined  to  the  opinion  that  the  former  suit  was 
to  be  regarded  as  conclusive.  The  case  of  Kitchen  and  others,  as- 
signees, &c.,  V.  Campbell,  3  Wils.  Rep.  304,  is  in  several  respects  analo- 
gous to  the  present.  That  was  an  action  of  assumpsit  for  money  had 
and  received  to  the  use  of  the  plaintiffs,  as  assignees  of  a  bankrupt. 
The  bankrupt,  being  indebted  to  Campbell  for  borrowed  money,  gave 
him  a  judgment,  on  which  execution  was  issued  to  the  sheriff  of 
Surry,  who  collected  the  amount  out  of  the  bankrupt's  goods.  The 
commission  of  bankruptcy  was  not  awarded  until  after  the  levy  under 
Campbell's  execution,  but  an  act  of  bankruptcy  had  been  committed 
before  the  judgment  was  obtained.  Campbell  pleaded  the  general  is- 
sue, and  proved  at  the  trial  that  the  plaintiffs  had  brought  a  previous 
action  of  trover  against  the  sheriff  of  Surry  together  with  Campbell, 
for  the  goods  levied  on  under  the  execution,  wherein  the  defendants 
obtained  a  verdict  and  judgment;  and  the  court  decided  unanimously 
that  this  constituted  a  bar  to  the  second  action.  "We  are  of  opinion," 
they  said,  "that  the  plaintiffs,  having  brought  trover  in  this  court 
against  the  sheriff  of  Surry  and  the  now  defendant,  to  recover  the 
value  of  the  goods  of  the  bankrupt  taken  in  execution,  (which  action 
well  laid,)  have  made  their  election ;  and  there  being  a  verdict  and 
judgment  upon  record  in  that  action  against  the  plaintiffs,  they  are 
barred  from  having  the  present  or  any  other  action;  for  you  shall  not 
bring  the  same  cause  of  action  twice  to  a  final  determination:  nemo 
debet  bis  vexari,  upon  this  we  found  our  judgment ;  and  what  is  meant 
by  the  same  cause  of  action  is,  where  the  same  evidence  will  support 
both  the  actions,  although  the  actions  may  happen  to  be  grounded  on 
different  writs.  This  is  the  test  to  know  whether  a  final  determination 
in  a  former  action  is  a  bar  or  not  to  a  subsequent  action." 

The  case  last  cited  disposes  of  the  question  as  to  the  conclusiveness 
of  a  former  verdict  and  judgment,  when  offered  in  evidence  under  the 
general  issue. 

He  also  thought  that,  as  a  matter  of  substantive  law,  the  former 
judgment  was  a  bar.^^ 

On  the  question  being  put,  "Shall  this  judgment  be  reversed?"  the 
members  of  the  court  voted  as  follows : 

For  reversal:    The  Chancellor,  and  Senators  Bartlit,  Bockee, 


2  5  This  statement  is  substituted  for  ttie  portion  of  the  opinion  in  which 
this  conclusioi)  was  reached. 

WHIT.C.L.PL.— 14 


210  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

Dixon,  Ely,  Foster,  Franklin,  Lawrence,  Lott,  Platt,  Porter, 
Rhoades,  Scott  and  Wright — 14, 

For  affirmance:  Senators  Denniston,  Hard,  Putnam,  Scovil  and 
Works — 5. 

Judgment  reversed.^* 

2  6  Picquet  V.  McKay,  2  Blackf.  (Ind.)  465  (1831).  Accord. 

Generally,  when  former  recovery  is  admissible  under  the  general  Issue,  It 
has  the  same  conclusive  effect  as  if  it  were  pleaded  specially.  Burrows  v. 
Jemino,  2  Str.  733  (1738) ;  Bird  v.  Randall,  3  Burr.  1345,  1353  (1762)  semble ; 
Kapischki  v.  Koch,  180  111.  44,  47,  54  N.  E.  179  (1899)  semble;  Warren  v. 
Comings,  6  Cush.  (Mass.)  103  (1850) ;  Wood  v.  Jackson,  8  Wend.  (N.  Y.)  10, 
35,  22  Am.  Dec.  603  (1831)  semble;  Young  v.  Rummell,  2  Hill  (N.  Y.)  478,  38 
Am.  Dec.  594  (1842) ;  Gilchrist  v.  Bale,  8  Watts  (Pa.)  355,  358,  34  Am.  Dec. 
469  (1839)  semble ;  Young  v.  Black,  7  Cranch,  565,  3  L.  Ed.  440  (1813) ;  Ma- 
son V.  Eldred,  6  Wall.  231,  234,  18  L.  Ed.  783  (1867)  semble ;  Whitney  v.  Town, 
18  Vt.  252,  255,  46  Am.  Dec.  150  (1846)  semble.  Accord.  Vooght  v.  Winch,  2 
B.  &  Al.  662  (1819);  Picquet  v.  McKay,  2  Blackf.  (Ind.)  465  (1831);  Miller  v. 
Manice,  6  Hill  (N.  Y.)  114  (1843).  Contra. 

Aside  from  the  defenses  of  the  statute  of  limitations  and  release,  de- 
fenses in  discharge  cannot  be  pleaded  in  confession  and  avoidance.  Devoe 
V.  Coridow,  1  Keb.  305  (1662);  Yorke  v.  Grenough,  2  Ld.  Raym.  868  (1704) 
semble ;  Webb  v.  Fox,  7  D.  <&  E.  391  (1797)  semble ;  Comyn,  Digest,  Action  on 
Case  on  Trover,  G,  6.  Accord.  Vaden  v.  Ellis,  18  Ark.  355,  358  (1857) 
semble;  Briggs  v.  Brown,  3  Hill  (N.  Y.)  87  (1842)  semble.  Contra.  A  fortiori 
they  are  admissible  under  the  general  issue.  Thomas  v.  Watt,  104  Mich. 
201,  62  N.  W.  345  (1895:    but  compare  INIich.  Cir.  Ct.  Rule  No.  7). 

The  statute  of  limitations  must  be  pleaded  in  confession  and  avoidance. 
Vaden  v.  Ellis,  18  Ark.  355,  358  (1857 :  possibly  says  court)  hardly  a  semble : 
Jones  V.  Dugan,  1  McCord  (S.  C.)  428  (1821) ;  1  Chitty,  Pleading  (13th  Am 
Ed.)  498;    2  Saund.  PI.  &  Ev.  1142.  Accord. 

A  release  must  be  specially  pleaded.  Devoe  v.  Coridow,  1  Keb.  305  (1662) 
semble;  Hartford  v.  .Jones.  1  Ld.  Raym.  393  (1698)  semble;  Yorke  v.  Gre- 
nough, 2  Ld.  Raym.  868  (1704)  semble;  Hawlev  v.  Peacock,  2  Camp.  558 
(1811)  semble;  Vaden  v.  Ellis,  18  Ark.  355,  358  (1857)  semble;  Graham  v. 
Warner,  3  Dana  (Ky.)  146,  149,  28  Am.  Dec.  65  (1835)  semble;  Comyn,  Di- 
gest, Action  on  Case  on  Trover,  G,  6.  Accord. 


Ch.  5)  EEPLEVIN  211 

CHAPTER  V 
REPLEVIN 


SECTION  1.— SCOPE  OF  THE  ACTION 


PRESGRAVE  v.  SAUNDERS. 

(Court  of   Queen's   Bench,   1704.     1   Salk.    5.) 

Replevin  for  several  goods  taken  in  a  chamber  in  Devereux  Court; 
defendant  pleaded  actio  non  quia  die  quoad  such  and  such,  proprietas 
eorum  fuit  ipsi  def.  absque  hoc,  That  the  property  of  them  was  in 
the  plaintiff,  &  hoc  paratus  est  verificare ;  &  quoad  others  dicit  quod 
proprietas  eorum  fuit  in  quodam  Richardo  Frith,  absque  hoc,  quod  fuit 
querenti,  &  hoc  paratus  est  verificare.  Unde  pet.  judic.  si  praed.  quer. 
actionem  suam  habere  debeat,  &c,  pet.  etiam  retorn.  bonorum,  &c.  cum 
dampnis,  &c.  Upon  demurrer  Mr.  Ward  objected,  that  property  in 
a  stranger  ought  to  be  pleaded  in  abatement,  and  not  in  bar.  Cur. 
contra:  It  has  been  adjudged  otherwise,  and  the  law  is  otherwise,  for 
it  utterly  destroys  the  plaintiff's  action:  and,  whether  the  defendant 
or  a  stranger  have  the  property,  it  is  all  one  to  the  plaintiff  since  he 
has  it  not.    Vide  31  H.  6.  12;   39  H.  6.  35;  2  Lev.  92;   1  Ven.  249.^ 

1  Martin  v.  Ray,  1  Blackf.  (Ind.)  291  (1S23) ;  Parsley  v.  Huston,  3  Blackf. 
(lud.)  348  (1834);  Tuley  v.  :\Iauzey,  4  B.  Men.  (Ky.)  5  (184:3);  Harrison  v. 
Mcintosh,  1  Johns.  (N.  Y.)  380,  385  (ISOSJ) ;  Prosser  v.  Woodward,  21  Wend. 
(N.  Y.)  205,  209  (1839) ;  Pattison  v.  Adams,  Lalor's  Supp.  (N.  Y.)  426  (1844) ; 
Dermott  v.  Wallach,  GO  U.  S.  96,  17  L.  Ed.  50  (1861).  Accord. 

Such  a  plea  must  conclude  with  a  traverse  of  the  plaintiff's  title.  Rob- 
inson V.  Calloway,  4  Ark.  94.  101  (1842) ;  Atkins  v.  Byrnes,  71  111.  326  (1874) 
semble ;  Chase  v.  Allen,  5  Allen  (Mass.)  599  (1863)  semble;  Brown  v.  Blssett, 
21  N.  J.  Law,  267,  274  (1848)  semble;  Prosser  v.  Woodward,  21  Wend.  (X. 
Y.)  205  (1839)  semble;    Pringle  v.  Phillips,  1  Sandf.  (N.  Y.)  292  (1848). 

Such  a  plea  is  for  all  purposes  a  traverse.  Uncapher  v.  Co.,  112  Fed.  899 
(1902:  Pennsylvania  law,  plaintiff  has  burden  of  proof);  Anderson  v.  Tal- 
cott,  1  Oilman  (111.)  365,  371  (1844 :  plaintiff  has  burden  of  proof) ;  Reynolds 
V.  McCormick,  62  111.  412  (1872:  good  discussion) ;  Pease  v.  Ditto,  189  111. 
456,  468,  59  N.  E.  983  (1901)  semble;  Gentry  v.  Bargis,  6  Blackf.  (Ind.)  261 
(1842:  burden  of  proof  on  plaintiff);  Pope  v.  Jackson,  65  Me.  162  (1876:  same 
as  last) ;  Benesch  v.  Weil,  69  Md.  276,  14  Atl.  666  (1888 :  same  as  last) ; 
Bemus  v.  Buckman,  3  Wend.  (N.  Y.)  668  (1829:  special  verdict  finding  title 
neither  in  defendant  nor  in  third  party  insufficient  unless  it  also  finds  that 
plaintiff  has  title). 

The  inducement  of  the  plea  is  not  traversable.  Pope  v.  Jackson,  65  Me. 
162  (1876)  semble;  Boswell  v.  Green,  25  N.  J.  Law,  390  (1856) ;  Prosser  v. 
Woodward,  21  Wend.  (N.  Y.)  205  (1839).  The  inducement  need  not  be  proved 
by  the  defendant.  Simcoke  v.  Frederick,  Smith  (Ind.)  64  (1848)  ;  Rogers  v. 
Arnold,  12  Wend.  (N.    Y.)   30  (1834).  Accord.     But  see  McLeod  v.   Johnson, 


212  PLEADINGS  IN  TORT  ACTIONS  (P^rt   1 

WALPOLE  V.  SMITH. 

(Supreme  Court  of  Indiana,  1837.    4  Blackf.  304.) 

Error  to  the  Marion  Circuit  Court. 

Dewey,  j.a  *  *  *  i^^g  f ^^^ts  are  as  follows :  Walpole  obtained 
a  judgment  before  a  justice  of  the  peace  against  Lang.  Execution  is- 
sued upon  it,  which  was  placed  in  the  hands  of  Smith,  a  constable,  to 
be  executed.  He  levied  upon  the  chattels  in  dispute,  and  left  them  in 
the  possession  of  Walpole.  The  property  belonged  to  Lang.  While 
it  remained  in  the  possession  of  Walpole,  and  before  the  return-day  of 
the  execution,  the  latter  was  quashed  by  the  justice,  the  levy  set  aside, 
and  the  execution  recalled ;  all  which  appears  by  the  return  of  the  ex- 
ecution made  by  Smith.  After  these  proceedings.  Smith  demanded 
the  property  of  Walpole,  and,  on  his  refusal  to  deliver  it  to  him, 
brought  this  action.     *     *     * 

The  other  point  arising  in  this  case — that  of  the  right  of  Smith  un- 
der the  evidence  to  sustain  the  action — is  of  a  more  doubtful  character. 

The  books  contain  a  great  number  of  cases  in  which  the  right  of 
property  has  been  decided  in  the  various  actions  of.  trespass,  trover, 
and  replevin.  In  considering  the  kind  of  interest  necessary  to  support 
the  latter,  some  of  the  decisions  have  ranked  it  with  trespass,  some 
with  trover,  and  others  again  have  distinguished  it  from  both,  classing 
trover  and  trespass  together.  All,  however,  American  and  English, 
with  one  exception,  have  concurred  in  one  point  as  to  the  defense  in 
replevin — that  property  in  a  stranger  is  a  good  plea.  The  exception 
is  to  be  found  in  the  argument,  rather  than  adjudication,  of  the  Su- 
preme Court  of  New  York  in  the  case  of  Rogers  v.  Arnold,  12  Wend. 
30.  It  is  there  contended  that  in  replevin  and  trover,  as  well  as  in  tres- 
pass, the  defense  of  property  in  a  stranger,  to  be  valid,  must  go  one 
step  further  and  connect  the  interest  of  the  defendant  with  that  of  the 
stranger.  That  this  is  true  in  regard  to  the  latter  form  of  action, 
which  is  founded  upon  possession,  is  readily  granted;  but  that  the 
same  doctrine  can  be  applied  to  the  two  former,  which  are  based  upon 
property,  and  so  admitted  to  be  in  the  opinion  in  question,  is  not  so 
easily  perceived. 

And  it  also  seems  to  be  no  easy  task  to  clear  from  the  charge  of  in- 
consistency those  decisions  which  have  held  that  mere  naked  posses- 
sion, without  the  right  of  property  general  or  qualified,  is  sufficient  to 
maintain  replevin,  and  at  the  same  time  have  conceded  that  the  plea 
of  property  in  a  stranger,  without  further  averment,  is  a  good  defense. 
To  say  that  possession  is  prima  facie  evidence  of  the  right  of  property 
does  not  remove  the  difficulty.    As  it  is  only  prima  facie,  it  may  be  re- 

96  Me.  271,  279,  52  Atl.  760  (1902).     The  plea  is  good  though  the  inducement 
be  bad.     Lamping  v.  Payne,  S3  111.  403  (1S7G).  Accord.    Anstice  v.  Holmes,  3 
Denio  (N.  Y.)  244  (1S4G).  Contra. 
si  Part  of  the  opinion  omitted. 


Ch.  5)  REPLEVIN  213 

butted  and  destroyed  by  testimony  showing  that  the  real  title  is  else- 
where. It  is  not  upon  the  principle  that  possession  is  prima  facie  evi- 
dence of  title,  that  trespass  de  bonis  asportatis  can  be  sustained.  It 
is  that  the  tortious  taking  of  goods  is  an  injury  to  the  possession  itself. 
The  right  of  property,  therefore,  in  that  action  can  only  be  urged  by 
the  true  owner,  or  some  one  claiming  under  him.  This  doctrine  we 
believe  not  to  be  applicable  to  replevin,  and  that  to  apply  it  to  that  ac- 
tion would  be  inconsistent  with  the  well  settled  rule  that  property  in 
a  stranger  is  a  good  defense.  That  trover  and  replevin  can  be  sus- 
tained by  bailees  presents  no  difficulty.  Bailees  have  a  qualified  prop- 
erty in  the  subject  of  bailment.    It  is  founded  on  contract. 

But  it  is  unnecessary  to  pursue  this  subject  and  to  attempt,  by  an 
analysis  of  the  conflicting  cases,  to  preserve  the  distinguishing  feature 
of  the  action  of  replevin  in  regard  to  the  kind  of  interest  necessary  to 
support  it — a  task  of  much  labor  and  some  difficulty.  The  result  has 
been  anticipated.  This  Court  has  heretofore  decided  that,  to  sustain 
the  action,  there  must  be  either  a  general  or  special  property  and  the 
right  of  immediate  possession  in  .the  plaintiff.  Chinn  v.  Russell,  2 
Blackf.  172;  Parsley  v.  Huston,  3  Blackf.  348.  These  decisions  are 
fully  sustained  by  the  following  authorities:  1  Inst.  145  b;  18  Vin. 
Abr.  577,  8,  9 ;  10  Mod.  25;  Selw.  N.  P.  (4th  Am.  Ed.)  364;  2  Stark. 
Ev.  (5th  Am.  Ed.)  714;  Wheeler  v.  Train,  3  Pick.  (Mass.)  255;  Wy- 
man  v.  Dorr,  3  Greenl.  (Me.)  183;  Waterman  v.  Robinson,  5  Mass. 
303. 

Smith,  by  the  levy  of  the  execution,  acquired  a  special  property  in 
the  goods,  which  continued  while  the  execution  remained  in  force,  and 
ceased  when  that,  together  with' the  levy,  was  set  aside  by  the  justice. 
With  the  extinguishment  of  his  special  property,  his  right  of  action 
ceased ;  for  a  bailor  can  not  sue  his  bailee  for  a  return,  after  his  right 
of  property  in  the  thing  bailed  has  been  destroyed.  4  Bingh.  106.  So 
soon  as  the  lien  acquired  by  Smith  in  consequence  of  his  levy  was  done 
away,  the  right  of  possession  reverted  to  Lang,  in  whom  was  the  gen- 
eral right  of  property.  This  event  occurred  before  Smith  made  the 
demand  upon  Walpole  for  the  goods.  At  no  time  before  he  made  the 
demand  had  he  cause  of  action,  because  until  then  there  was  no  de- 
tainer; and  he  had  none  afterwards,  because  his  right  of  property 
ceased  from  the  time  of  quashing  the  execution. 

We  are  of  opinion  that  Smith  could  not  sustain  this  action. 

Per  Curiam.  The  judgment  is  reversed,  and  the  proceedings  sub- 
sequent to  the  issues  in  fact  set  aside,  with  costs.     Cause  remanded, 

&C.3 

3  Bacon's  Case,  Cro.  Eliz.  475  (1596);  Butcher  v.  Porter,  1  Salk.-94  (1G72) : 
Pvobiuson  v.  CaHoway,  4  Ark.  94,  101  (1842) ;  Dixon  v.  Thatcher.  14  Ark.  141 
(1853);  Anderson  v.  Taleott,  1  Oilman  (111.)  3G5,  371  (1844)  semble ;  Cullum 
V.  Bevans,  6  Har.  &  J.  (Md.)  4G9  (1825)  semble;  Whitwell  v.  Wells.  24  Pick. 
(Mass.)  25,  30  (1834)  semble;  Phillips  v.  Townsend,  4  Mo.  101  (1835) ;  Cham- 
bers V.  Hunt,  18  N.  J.  Law,  339,  3<i7  (1841)  semble ;  Harrison  v.  Mcintosh,  1 
Johns.  (N.  Y.)  3S0,  385  (1806)  semble;    Ingraham  v.  n*uuinond,  1  Hill  (N.  Y.) 


214  PLEADINGS  IN  TORT  ACTIONS  (Part   1 

OSGOOD  V.  GREEN. 

(Superior  Court  of  New  Hampshire,  1855.     30  N.  H.  210.) 

Appeal  from  the  judgment  of  a  justice  of  the  peace.  The  action 
was  replevin  for  a  three  years  old  bull;  and  the  declaration  alleged 
that  the  defendant,  on  the  14th  day  of  June,  1853,  in  a  certain  close 
described  in  the  declaration,  took  the  bull  and  unjustly  detained  him. 

The  defendant  avowed  and  justified  the  taking  of  the  bull  as  dam- 
age-feasant,  but  did  not  avow  or  justify,  or  in  any  way  answer  or  de- 
fend the  detention,  and  issue  was  joined  on  the  question  of  damage. 

The  plaintiff  demurred  to  the  avowry.     *     *     * 

Eastman,  J.*  This  case,  though  very  brief,  presents  two  questions, 
and  one  of  them  has  required  considerable  examination.    *     *     * 

The  second  question  is  a  more  difficult  one ;  but  after  considerable 
examination,  we  think  that  the  demurrer  must  be  overruled.  The 
avowry  is  objected  to  on  the  ground  that,  while  it  justifies  the  taking, 
it  leaves  unanswered  the  detention;  and  this  objection  rests  upon  the 
position  that  our  statute  has  extended  the  remedy  of  replevin  to  cases 
of  wrongful  detention,  to  which  it  did  not  apply  at  common  law,°  and 


353  (1841);  Pattison  v.  Adams,  7  Hill  (N.  Y.)  126,  42  Am.  Dec.  59  (1845) 
semble ;  Marsh  v.  Pier,  4  Rawle  (Pa.)  273,  2S3.  2G  Am.  Dec.  131  (1833)  semble. 
Accord.  Stockwell  v.  Robinson,  9  Houst.  (Del.)  313,  32  Atl.  528  (1892); 
Van  Namee  v.  Bradlev,  09  111.  299  (1873) ;  Cummins  v.  Holmes,  109  111.  15 
(1884) ;  Johnson  v.  Keale,  6  Allen  (Mass.)  227  (1863) ;  Odd  Fellows  v.  McAl- 
lister, 153  Mass.  292,  26  N.  E.  862,  11  L.  R.  A.  172  (1891)  ;  Sanford  v.  Millikin, 
144  Mich.  311,  107  N.  W.  884  (1906) ;  Pangburn  v.  Partridge,  7  Johns.  (N.  Y.) 
140,  5  Am.  Dec.  250  (ISIO)  semble ;  Clark  v.  Skinner,  20  Johns.  (N.  Y.)  465, 
11  Am.  Dec.  302  (1823)  semble;  Rogers  v.  Arnold,  12  Wend.  (N.  Y.)  30  (1834) 
semble;  Miller  v.  Adsit,  16  ^Yend.  (N.  Y.)  335  (1836);  Mead  v.  Kilday,  2 
Watts   (Pa.)   110   (1833).  Contra. 

Wrongful  possession  is  not  enough.  Knox  v.  Heliums,  38  Ark.  413  (1882) 
semble;    Parham  v.  Riley,  4  Cold.  (Tenu.)  5  (1867). 

Right  to  possession  suffices.  Hudson  v.  Snipes,  40  Ark.  75  (1882) ;  Shipton 
V.  Norrid,  1  Colo.  404  (1871) ;  Hazzard  v.  Burton,  4  Har.  (Del.)  62  (184.3) ; 
Cleaves  v.  Herbert,  61  111.  126  (1871) ;  Chinn  v.  Russell,  2  Blackf.  (Ind.)  172 
(1828);  Gleason  v.  Drew,  9  Me.  79  (1832);  Grosvenor  v.  Phillips,  2  Hill  (N. 
Y.)  147  (1841);  Miller  v.  W^nrden,  111  Pa.  300,  2  Atl.  90  (1886);  Wood  v. 
Weimar,  104  U.  S.  786,  792,  26  L.  Ed.  779  (1881:  Michigan  law).  Accord. 
Dillon  V.  Wright,  7  J.  J.  Marsh.  (Ky.)  10  (1831).  Contra. 

Ownership  without  either  right  to  possession  or  possession  is  insufficient. 
Wallace  v.  Brown,  17  Ark.  4.'50  (18.36);  Amos  v.  Sinnott,  4  Scam.  (111.)  440 
(1843) ;  Cumberland  Co.  v.  Tilghman,  13  Md.  74,  83  (1859) ;  Collins  v.  Evans, 
15  Pick.  (Mass.)  63  (1833) ;    Hess  v.  Griggs,  43  Mich.  397,  5  N.  W.  424  (1880). 

Custody  is  insufficient.  Pease  v.  Ditto,  189  111.  456,  59  N.  E.  983  (1901); 
Warren  v.  Leland,  9  Mass.  265  (1812) ;  Harris  v.  Smith,  3  Serg.  &  R.  (Pa.)  20 
(1817 :    but  possession  as  agent  is  sufficient)  semble. 

4  Statement  of  facts  abridged  and  part  of  opinion  omitted. 

5  Shannon  v.  Shannon,  1  Sch.  e<t  Lef.  324  (1804) ;  Meunie  v.  Blake,  6  E.  &  B. 
M2  (1856) ;  Marshall  v.  Davis.  1  Wend.  (N.  Y.)  109,  19  Am.  Dec.  463  (1828). 
But  to-day  either  by  decisions  or  statutes  replevin  lies  for  a  detention.  Rob- 
inson V.  Calloway,  4  Ark.  94  (1842:  statute) ;  Badger  v.  Phinney,  15  Mass. 
359,  8  Am.  Dec.  105  (1819:  decision) ;  Rogers  v.  Arnold,  12  Wend.  (N.  Y.)  30 
(1834:    statute);    Stoughton   v.  Rappalo.  3  Serg.  &  R.   (Pa.)  559  (1818:    deci- 


Ch.  5)  REPLEVIN  215 

that  the  action  must,  therefore,  be  subject  to  new  rules  of  pleading,  re- 
quiring not  only  the  taking  to  be  justified,  but  the  detention  also. 

An  examination  of  the  authorities  has  brought  us  to  the  conclusion 
that,  before  the  enactment  of  our  statute,  the  action  of  replevin  would 
lie  for  the  wrongful  detention  of  the  distress,  notwithstanding  the  tak- 
ing might  be  rightful;  and  that  the  statute  has  made  no  substantial 
change  in  the  law  in  that  respect. 

Blackstone  says,  if  I  distrain  another's  cattle  damage  feasant,  and 
before  they  are  impounded,  he  tenders  me  sufficient  amends,  now  al- 
though the  original  taking  was  lawful,  my  subsequent  detainment  of 
them,  after  tender  of  amends,  is  wrongful,  and  he  shall  have  an  ac- 
tion of  replevin  against  me  to  recover  them ;  in  which  he  shall  recover 
damages  only  for  the  detention,  and  not  for  the  caption,  because  the 
original  taking  was  lawful.    3  Black.  Com.  151. 

In  Evans  v.  Elliott,  5  A.  &  E.  142,  which  was  replevin  for  taking 
and  detaining,  &c.,  the  avowry  was  for  rent  in  arrears,  and  the  plea 
that,  after  the  taking  and  before  the  impounding,  the  plaintiff  tendered 
the  rent  and  expenses ;  on  special  demurrer  for  that  the  plea  did  not 
go  to  the  taking  but  only  to  the  detaining,  it  was  held  that  the  plea 
was  good,  the  tortious  detention  being  a  taking. 

The  following  authorities,  it  is  believed,  will  also  sustain  us  in  the 
conclusion  stated :  Com.  Dig.  Replevin  C. ;  Spelman's  Glossary,  485 ; 
Gilbert  on  Replevin,  58;  Hammond's  N.  P.  373,  448;  Fitzherbert's 
Natura  Brevium,  69  Hale's  note  a. ;  8  Coke,  290 ;  Isley  et  al.  v. 
Stubbs,  5  Mass.  284;   Baker  v.  Fales,  16  Mass.  147. 

Some  of  the  books  hold  that  the  action  cannot  be  maintained  for  an 
illegal  detention  merely,  except  by  express  provision  of  the  statute, 
unless  the  act  be  such  as  to  make  the  defendant  a  trespasser  ab  initio. 
And  such  would  appear  to  be  the  weight  of  authority.  Pangburn  v. 
Partridge,  7  Johns.  (N.  Y.)  140,  5  Am.  Dec.  250;  Cresson  v.  Stout, 
17  Johns.  (N.  Y.)  116,  8  Am.  Dec.  373;  Meany  v.  Head,  1  Mason, 
322,  Fed.  Cas.  No.  9,379;   Graham's  Prac.  55;    Story's  PI.  442,  note. 

But  so  are  not  all  the  authorities.  In  Massachusetts,  the  court  have 
said  that  the  action  will  lie  at  common  law  for  an  illegal  detention,  in- 
dependent of  their  statutory  provisions.  Isley  et  al,  v.  Stubbs,  5  Mass. 
284;  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Portland 
Bank  v.  Stubbs,  6  Mass.  427,  4  Am.  Dec.  151.  And  in  Baker  v.  Fales, 
16  Mass.  147,  the  particular  point  decided  was  that  "replevin  lies  for 
a  wrongful  detention  of  the  plaintiff's  goods,  although  the  original 
taking  may  have  been  justifiable,"  And  so  also  was  the  decision  in 
Marston  v.  Baldwin,  17  Mass.  606. 

sion).  For  many  citations,  sliowing  both  the  original  and  the  modern  rule, 
see  34  Cyc.  1395. 

Even  under  the  original  rule  it  was  not  necessary  that  the  goods  should 
have  been  taken  as  a  distress.     34  Cyc.  1353. 

Obviously  either  a  taking  or  detention  is  necessary.  Simpson  v.  McFar- 
land.  IS  Pick.  (Mass.)  427,  29  Am.  Dec.  602  (1S37);  Darling  v.  Tegler,  30  Mich. 
54  (1S74). 


216  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

It  appears  to  be  admitted  in  the  argument  that  if  the  acts  of  the 
plaintiff  were  such  as  to  make  him  a  trespasser  ab  initio,  the  avowry  is 
sufficient,  replevin  being  maintainable  in  such  a  case,  and  the  plea  ac- 
cording to  the  forms. 

Assuming  this  to  be  so,  and  that  the  action  cannot  be  maintained 
unless  the  acts  amount  to  trespass  ab  initio,  still  this  avowry  would 
seem  to  be  good.  According  to  high  authority,  any  matter  showing 
the  distress  to  have  been  abused,  or  the  proceedings  of  the  defendant 
to  have  been  irregular,  may  be  brought  out  by  plea  to  the  avowry.  As 
the  detention  presupposes  and  includes  a  caption,  by  the  forms  and 
rules  of  pleading  a  justification  of  the  caption  is  a  justification  of  the 
detention,  and  the  new  matter,  showing  the  detention  to  have  been  il- 
legal, should  be  set  forth  in  the  plea  to  the  avowry.  The  issue  thus 
becomes  narrowed  down  to  the  real  point  in  controversy — the  irregu- 
lar or  illegal  proceedings,  or  abuse  of  the  distress  after  the  caption. 
Sackrider  v.  McDonald,  10  Johns.  (N.  Y.)  253;  Pratt  v.  Petrie,  2 
Johns.  (N.  Y.)  191;  Hopkins  v.  Hopkins,  10  Johns.  (N.  Y.)  369. 

In  Sackrider  v.  McDonald,  10  Johns.  (N.  Y.)  253,  it  was  decided 
that  if  a  party  failed  to  have  the  damages  done  by  the  cattle  assessed, 
according  to  the  requirements  of  the  statute,  it  was  irregular  and  un- 
lawful, and  rendered  the  party  impounding  a  trespasser  ab  initio. 

Pratt  V.  Petrie,  2  Johns.  (N.  Y.)  191,  is  to  the  same -effect.  And  in 
Hopkins  v.  Hopkins,  10  Johns.  (N.  Y.)  369,  it  was  held  that,  in  re- 
plevin, where  the  defendant  justifies  the  taking  of  the  beasts  as  a  dis- 
tress damage  feasant,  the  plaintiff,  may  reply  that  the  avowant,  after 
making  the  distress,  abused  it,  so  as  to  render  him  a  trespasser  ab 
initio ;  as  if  he  impounds  the  cattle  after  making  the  distress,  without 
having  the  damage  previously  assessed  by  the  fence-viewers,  accord- 
ing to  the  directions  of  the  (New  York)  act.  And  he  shall  recover 
damages,  as  in  trespass,  for  the  unlawful  taking.  In  the  course  of  the 
opinion  which  was  delivered  by  Kent,  C.  J.,  it  is  said  that  "it  is  a  point 
assumed  in  many  of  the  books,  and  no  where  denied,  that  the  plaintiff 
may  plead  in  bar  to  the  avowry  that  the  avowant  so  abused  the  dis- 
tress as  to  render  himself  a  trespasser  from  the  beginning.  There  is 
no  reason  why  the  general  principle  should  not  apply  to  this  action  as 
well  as  to  trespass,  that  where  a  person  acts  under  an  authority  or  li- 
cense given  by  law,  and  abuses  it,  he  shall  be  deemed  a  trespasser  ab 
initio." 

According  to  the  doctrine  of  these  cases,  this  plaintiff  may  plead 
to  the  defendant's  avowry  any  matter  showing  an  abuse  of  the  dis- 
tress, or  any  unlawful  or  illegal  proceedings  by  the  defendant,  after 
the  taking.  The  defendant  may  thus  be  shown  to  stand  in  the  position 
of  a  trespasser  ab  initio,  and  so  liable,  upon  this  ground,  at  common 
law. 

There  is  weight  in  the  suggestion  of  the  plaintiff's  counsel,  that  the 
defendant  must  know,  and  should,  therefore,  be  held  to  set  out  the 
matter  on  which  he  relies  for  a  defence  of  the  detention.     But  when 


Ch.  5)  REPLEVIN  217 

he  justifies  the  taking  of  the  cattle  as  damage  feasant,  his  pleading 
shows  him  to  be  in  the  right,  and  this  is  all  the  law  requires  of  him  in 
the  first  instance.  His  rightful  caption  includes  the  detention.  Re- 
plevin cannot  be  maintained  against  him  unless  he  had  no  right  to  make 
the  distress,  or  has  abused  it,  or  proceeded  illegally  after  making  it; 
and  if  the  plaintiff  sees  fit  to  commence  this  form  of  action  against  him, 
and  he  justifies  the  taking,  it  has  been  said  that  the  plaintiff,  and  not 
the  defendant,  should  be  called  upon  to  show  why  the  action  was 
brought ;  that  he  ought  to  know  and  be  required  to  state,  in  the  course 
of  the  pleadings,  the  ground  of  bringing  his  action.  But  whatever  may 
have  been  the  reason  of  the  rule,  the  books  appear  to  us  to  settle  it; 
and  being  more  a  matter  of  practice  than  one  involving  any  essential 
principle  affecting  the  rights  of  the  parties,  we  think  we  should  ad- 
here to  the  authorities,  and  that  the  demurrer  should  be  overruled.^ 


POWELL  V.  SMITH. 

(Supreme  Court  of  Pennsylvania,  1833.     2  Watts,  126.) 

Error  to  the  common  pleas  of  Butler  county. 

Replevin.  Andrew  Smith,  the  defendant  in  error,  had  recovered  in 
ejectment  against  the  plaintifif  in  error,  John  Powell,  a  tract  of  land 
with  a  merchant  mill  thereon  erected:  after  judgment,  and  before  the 
issuing  of  a  habere  facias  possessionem,  Powell  severed  and  removed 
from  the  mill  the  bolting-cloth,  meal-chest,  mill-spindle,  &c.  &c. ;  and 
this  replevin  was  brought  by  Smith  for  those  articles.  The  objections 
to  the  plaintiff's  recovery  were :  that  the  property,  if  personal,  of  right 
belonged  to  the  defendant;  and  if  it  belonged  to  the  realty,  replevin 
was  not  an  appropriate  form  of  action. 

The  court  below  was  of  opinion  that  the  property  belonged  to  and 
passed  with  the  realty,  but  inasmuch  as  the  defendant  had  severed  it, 
it  was  personal  so  far  as  regarded  him  and  the  right  to  maintain  this 
action.    The  plaintiff  recovered. 

The  opinion  of  the  Court  was  delivered  by 

Gibson,  C.  J.  The  principle  which  is  to  govern  this  case,  was  set- 
tled in  Mather  v.  Trinity  Church,  3  Serg.  &  R.  509,  8  Am.  Dec.  663, 
Baker  v.  Howell,  6  Serg.  &  R.  476,  and  Brown  v.  Caldwell,  10  Serg. 
&  R.  114,  13  Am.  Dec.  660,  in  which  it  was  determined,  on  principle 
and  authority,  that  the  right  of  property  in  a  chattel,  which  has  be- 
come such  by  severance  from  the  freehold,  cannot  be  determined  in  a 
transitory  action  by  a  trial  of  the  title  to  the  freehold,  because  the  ti- 
tle to  land  might  otherwise  be  tried  out  of  the  county.  An.  action  of 
trover  or  replevin  for  such  a  chattel  therefore  does  not  lie  by  a  plaintiff 
out  of  possession.     And  this  is  entirely  consistent  with  the  admitted 

8  But  where  replevin  in  the  detinet  was  brought  it  was  held  tb:^i  such  ar 
avowry  was  bad.     Baird  v.  Porter.  67  Pa.  lOo  (1871). 


218  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

principle  that  a  proprietor,  in  actual  possession,  may  waive  the  tres- 
pass to  the  freehold,  and  go  for  the  value  of  the  property  taken,  be- 
cause the  action  is  maintainable  on  evidence  of  possession  alone.  In- 
dependent of  this  technical  inhibitory  principle,  which  however  is  de- 
cisive, it  would  provoke  much  useless  litigation,  and  be  attended  with 
great  practical  mischief,  if  an  owner  out  of  possession  were  suffered 
to  harass  the  actual  occupant  with  an  action  for  every  blade  of  grass 
cut,  or  bushel  of  grain  grown  by  him,  instead  of  being  compelled  to 
resort  to  the  action  for  mesne  profits,  after  a  recovery  in  ejectment, 
by  which  compensation  for  the  whole  injury  may  be  had  at  one  opera- 
tion. It  may  be  safely  affirmed  then,  that  an  action  like  the  present 
cannot  be  maintained  where  the  plaintiff  can  make  title  to  the  chattel 
only  by  making  title  to  the  land  from  which  it  was  severed.  But  it 
would  seem  that  actual  possession,  at  the  time  of  the  severance,  is  suf- 
ficient evidence  of  property.  Here,  however,  the  property  laid  in  the 
declaration  was  taken  by  the  defendant  while  he  was  yet  in  actual  pos- 
session, though  after  a  recovery  of  the  mill,  of  which  it  was  essentially 
a  part ;  and  the  only  thing  like  a  question  in  the  cause  is,  whether  the 
naked  recovery,  which  preceded  the  asportation,  distinguishes  the  case 
from  those  cited.  But  nothing  is  clearer  than  that  such  a  recovery  is 
not  equivalent  to  an  entry  even  to  bar  the  statute  of  limitations,  and 
therefore  not  equivalent  to  actual  possession.  The  mind  is  staggered 
at  this  conclusion,  but  unnecessarily,  by  an  apprehension  that  it  would 
leave  the  plaintiff  without  a  remedy.  He  may  have  remedy  by  the  ac- 
tion for  mesne  profits,  not  in  the  usual  form,  but  by  laying  the  spolia- 
tion specially  in  the  declaration.  Dewey  v.  Osborn,  4  Cow.  (N.  Y.) 
329,  is  the  very  case;  and  Goodtitle  v.  Tombs,  3  Wils.  118,  Hylton  v. 
Brown,  2  Wash.  C.  C.  165,  Fed.  Cas.  No.  6,983,  and  Lessee  of  Jackson 
V.  Loomis,  4  Cow.  (N.  Y.)  172,  15  Am.  Dec.  347,  are  founded  essen- 
tially on  the  same  principle.  Besides,  he  might  have  remedy  by  the 
writ  of  estrepement,  if  not  pendente  placito  under  the  statute  of  Glou- 
cester or  our  own  act  of  assembly,  yet  certainly  at  the  common  law, 
for  waste  committed  after  judgment  and  before  execution,  as  appears 
by  2  Inst.  328 ;  in  which  damages  may  be  recovered  commensurate 
with  the  injury. 

Judgment  reversed.' 

7  Anderson  v.  Hapler,  34  111.  436.  So  Am.  Dec.  318  (1864) ;  Miller  v.  Wes- 
son, 58  Miss.  831  (1881)  semble ;  Rich  v.  Baker,  3  Denio  (N.  Y.)  79  (1846). 
Accord.  McKinnon  v.  Meston,  104  Mich.  642,  .62  N.  W.  1014  (1895) ;  P.  L.  Pa. 
1871,  p.  268.  Contra. 

The  doctrine  of  our  case  has  been  applied  also  in  trover.  Miller  v.  Wes- 
son. 58  Miss.  831  (1881) ;  National  Co.  v.  Weston,  121  Pa.  485,  15  Atl.  569 
;i888 :  the  statute  cited  in  the  last  paragraph  not  covering  trover).  Accord, 
llich  V.  Baker,  3  Denio  (N.  Y.)  79  (1846)  semble.  Contra. 

The  same  doctrine  has  been  applied  in  assumpsit  for  the  price  obtained  by 
defendant  on  a  sale  of  such  articles.  Miller  v.  Wesson,  58  Miss.  831  (1881) ; 
Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)   114,  13  Am.  Dec.  6G0  (1823)  semble. 

If  the  defendant  had  not  disseised  the  plaintiff  but  was  in  mei'e  temporary 
occupancy   of  the  land  the   doctrine  does  not   apply.     Davis   v.   Easley,   13 


I 


Ch.  5)  REPLEVIN  219 

RICHARDSON  &  SKILTON  v.  REED  et  al. 
(Supreme  Court  of  Massachusetts,  1855.    4  Gray,  441,  G4  Am.  Dec.  77.) 

Two  actions  of  replevin.  The  first  was  of  goods  attached  and 
held  by  one  of  the  defendants  as  deputy  sheriff,  by  direction  of  the 
other,  on  a  writ  sued  out  by  the  latter  against  Emerson  Olmstead. 

At  the  trial  in  the  court  of  common  pleas,  there  was  evidence  tend- 
ing to  show  that  some  of  the  goods  were  the  property  of  the  plaintiff. 
The  defendants  contended  that  the  attachment  of  the  goods  by  the 
deputy  sheriff  by  direction  of  the  attaching  creditor,  and  holding 
the  same  so  attached,  were  not  such  a  taking  and  holding  as  would 
render  the  creditor  jointly  liable  with  the  officer  in  this  action. 

But  Hoar,  J.,  instructed  the  jury  that  if  the  creditor  directed  the 
officer  to  make  the  attachment  on  the  writ  against  Olmstead,  and  the 
officer,  pursuant  to  this  direction,  did  attach  and  hold  the  goods  by 
virtue  of  the  writ,  and  any  of  the  goods  were  the  property  of  the 
plaintiff,  this  would  be  such  a  taking  and  holding  on  the  part  of  the 
creditor  as  to  render  him  jointly  liable  with  the  officer  in  this  action, 
although  the  creditor  never  took  or  had  the  goods  in  his  possession. 
The  jury  found  a  verdict  for  the  plaintiff  as  to  some  of  the  goods, 
and  for  the  defendant  as  to  the  residue.  The  defendants  alleged 
exceptions.     *     *     * 

The  second  action  was  replevin  of  a  horse  attached  on  a  writ  sued 
out  by  the  defendants  jointly  against  Charles  S.  Wright.  At  the 
trial  in  the  court  of  common  pleas,  it  appeared  that  the  horse  was 
the  property  of  the  plaintiff,  and  was  taken  as  Wright's  property  by 
the  attaching  officer  under  the  direction  of  one  of  the  defendants, 
and  afterwards  remained  in  the  hands  of  a  keeper  with  whom  the 
officer  left  it.  The  defendants  contended  that  the  action  of  replevin 
should  have  been  brought  against  the  attaching  officer,  or  his  keeper, 
and  could  not  be  maintained  against  the  defendants  or  either  of  them. 
And  so  Briggs,  J.,  ruled  pro  forma,  for  the  purpose  of  having  this 
question  of  law  determined.  A  verdict  was  taken  for  the  defend- 
ants, and  the  plaintiff  alleged  exceptions.^     *     *     * 

Metcalf,  J.  Though  an  officer  who  attaches,  and  a  plaintiff  who 
directs  him  to  attach  A's  goods,  on  a  writ  against  B,  are  joint  tres- 
passers, and  may  be  sued  jointly  in  an  action  of  trespass  or  trover, 
yet  they  cannot  be  sued  jointly  in  an  action  of  replevin.  The  grounds 
and  incidents  of  a  replevin  suit  are  incompatible  with  the  joinder  of 
the  creditor  and  officer  as  defendants.  The  writ  of  replevin  assumes 
that  the  goods  which  are  to  be  replevied  have  been  taken,  detained 

111.  192  (1S51:  but  question  not  raised)  not  even  a  senible ;  Phillips  v.  Gas- 
trell,  (Jl  Miss.  413  (1S83);    Brewer  v.  Fleming,  'A  Pa.  102.  11.5  (ISGG). 

See,  further,  1  Chitty,  Pleading  (13th  Am.  Ed.)  *1G3 ;  24  Am.  &  Eng. 
Ency.  48G. 

8  Argument  of  counsel  omitted. 


220  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

or  attached  by  the  defendant,  and  are  in  his  possession  or  under  his 
control;  and  it  directs  that  they  shall  be  replevied  and  delivered  to 
the  plaintiff,  provided  he  shall  give  bond  conditioned,  among  other 
things,  to  restore  and  return  the  same  goods  to  the  defendant,  and 
pay  him  damages,  if  such  shall  be  the  final  judgment  in  the  action. 
But  attached  goods  are  in  the  legal  custody  and  possession  of  the 
officer  only.  The  attaching  creditor  has  no  property  in  them,  gen- 
eral or  special ;  no  right  to  the  possession  of  them ;  and  no  right 
of  action  against  a  third  person  who  may  take  them  from  the  officer 
or  destroy  them.  Ladd  v.  North,  2  Mass.  516.  How  then  can  the 
goods  be  returned,  on  a  writ  of  return  or  reprisal,  to  him  who  never 
had  possession  of  them,  nor  the  right  of  possession?  Or  how  can 
he  be  entitled  to  damages  for  the  taking  and  detaining  of  goods  in 
which  he  had  no  property? 

The  plaintiffs'  counsel  cited  Allen  v.  Crary,  10  Wend.  (N.  Y.)  349, 
25  Am.  Dec.  566,  as  an  authority  for  sustaining  these  actions.  In 
that  case  the  plaintiff,  whose  goods  had  been  taken  on  an  execution 
against  a  third  person,  maintained  replevin  against  the  judgment  cred- 
itor who  directed  the  officer  to  take  the  goods.  The  court  proceeded 
on  the  ground  that,  as  both  the  officer  and  creditor  were  trespassers, 
replevin  would  lie  against  either  of  them,  because  it  would  lie  wher- 
ever trespass  de  bonis  asportatis  would.  And  in  a  -subsequent  case 
in  the  same  state,  the  court  maintained  an  action  of  replevin  against 
the  officer  and  creditor  jointly.  Stewart  v.  Wells,  6  Barb.  (N.  Y.) 
79.  But  we  cannot  admit  the  position  that  replevin  will  lie  wherever 
trespass  de  bonis  will.  The  two  actions  are  not,  in  all  cases,  concur- 
rent. By  the  common  law,  replevin  cannot  be  maintained  where  tres- 
pass cannot;  for,  by  that  law,  an  unlawful  taking  of  goods  is  a  pre- 
requisite to  the  maintenance  of  replevin.  2  Leigh,  N.  P.  1323 ;  IMeany 
V.  Head,  1  Mason,  322,  Fed.  Cas.  No.  9,379;  Hopkins  v.  Hopkins, 
10  Johns.  (N.  Y.)  373.  But  trespass  will  lie  in  cases  where  replevin 
will  not.  Replevin,  being  an  action  in  which  the  process  is  partly 
in  rem,  will  not  lie  where  it  is  impracticable  or  unlawful  to  execute 
that  part  of  the  process  according  to  the  precept.  Thus,  replevin  will 
not  lie  against  him  who  takes  goods  and  destroys  them,  or  sells  and 
delivers  them  to  a  stranger;  yet  he  might  be  sued  in  trespass.  So 
where  an  officer  seized  A's  property,  first  on  an  execution  against 
B,  and  then  on  an  execution  against  A,  it  was  held  by  the  court 
which  decided  the  case  of  Allen  v.  Crary,  that  although  A  might  main- 
tain trespass  for  the  first  seizure,  yet  he  could  not  replevy  the  prop- 
erty; because  he  had  no  right  to  the  possession  of  it  after  the  last 
seizure.^     Sharp  v.  Whittenhall,  3  Hill  (N.  Y.)   576.     In  that  case, 

9  Bartlett  v.  Goodwin.  71  Me.  S.'O  (ISSO)  seinble ;  Cary  v.  Hewitt,  26  Mich. 
228  (1872)  semble;  Eldridge  v.  Sherman,  70  Mich.  2GG.  38  N.  W.  255  (1SS8) 
semble;  Chambers  v.  Haut,  18  N.  J.  Law.  .339.  343  (1841)  semble.  Accord.  In 
Le  Flore  v.  Miller,  64  Miss.  204,  1  South.  90  (ISSG),  it  was  held  that  plaintiff 
must  be  entitled  to  the  possession  at  the  time  when  judgment  for  him  is 
rendered. 


Ch.  5)  REPLEVIN  221 

and  in  Brockway  v.  Burnap,  12  Barb.  (N.  Y.)  351,  the  former  dicta, 
that  replevin  would  He  wherever  trespass  de  bonis  would,  were  de- 
nied; and  in  the  latter  case  it  was  said  that  in  Allen  v.  Crary  the 
court,  by  sustaining  replevin  against  a  defendant  who  had  not  the 
property  in  his  possession,  "pushed  out  the  analogy  between  trespass 
de  bonis  asportatis  and  replevin  further  than  is  warranted  by  the 
cases."    See,  also,  Roberts  v.  Randel,  3  Sandf.  (N.  Y.)  712,  713. 

In  our  opinion,  replevin  cannot  be  maintained,  in  this  commonwealth, 
against  a  person  who  has  no  possession  or  control  of  the  goods  to 
be  replevied;  replevied  goods  cannot  be  restored  and  returned  to  a 
person  from  whom  they  were  never  taken ;  and  such  person  cannot 
rightfully  be  made  a  defendant,  sole  or  joint,  in  an  action  of  re- 
plevin. 

Exceptions  sustained,  in  the  first  case;   overruled,  in  the  second.^" 


PHILIPS  &  WALKER  v.  HARRISS. 
(Court  of  Appeals  of  Kentucky,  1829.     3  J.  J.  Marsh.  122,  19  Am.  Dec.  166.) 

Judge  Underwood  ^^  delivered  the  opinion  of  the  court. 

The  appellants,  as  trustees  of  Airs.  Richardson  and  her  children, 
instituted  an  action  of  replevin  against  the  appellee.  Four  negroes 
were  the  subject  of  the  controversy.  Harriss  relied  upon  the  fol- 
lowing facts,  which  were  set  out  in  two  pleas,  as  his  defence,  to  wat: 
that  two  executions  were  placed  in  his  hands,  he  being  coroner  of 
Anderson  county,  against  the  estate  of  John  C.  Richardson ;  that  in 
virtue  of  said  executions,  and  while  they  were  in  full  force,  he  levied 
on  the  slaves,  in  the  declaration  mentioned,  they  being  in  the  posses- 
sion of  the  said  Richardson;  that  he  advertised  the  slaves  for  sale, 
according  to  law,  permitted  them  to  remain  with  said  Richardson, 
and  took  his  bond,  with  surety,  to  have  them  forth  coming,  on  the 
day  of  sale;  that  he  gave  the  plaintiffs,  who  claimed  the  property, 
ten  days  previous  notice,  of  the  time  and  place  of  sale;  that  in  pur- 
suance of  the  act  of  assembly,  in  such  cases  made  and  provided,  he 
summoned  a  jury,  to  try  the  right  of  said  slaves;   that  the  jury  were 

10  Paul  V.  Luttrell,  1  Colo.  317  (1871);  Carpenter  v.  Starr,  1  Mackev  (D. 
C.)  417  (1882) ;  Ramsdell  v.  Buswell.  54  Me.  546  (1807) ;  Herzbers:  v.  Sachse, 
(50  Md.  426.  433  (1883)  semble ;  Hall  v.  White.  106  Mass.  599  (1871) ;  Calnan 
V.  Stern.  1.53  Mass.  413,  26  N.  E.  994  (1891) ;  Burt  v.  Burt,  41  Mich.  82,  1  N. 
W.  936  (1879) ;  Gildas  v.  Crosby,  61  Mich.  413.  28  N.  W.  153  (1SS6) ;  Kros- 
mopolski  V.  Paxtou,  58  Miss.  581  (1881)  semble;  Mitchell  v.  Roberts,  50  "N 
H.  486  (1871).  Accord.  Davidson  v.  King,  15  New  Bruns.  526,  32  (1875) 
Contra. 

If  defendant  parted  with  the  possession  wrongfully  replevin  will  still  lie 
against  him.  Sayward  v.  Warren,  27  Me.  453  (1847) ;  McBrian  v.  Morrison, 
55  :Mich.  351,  21  N.  W.  368  (1884).  Accord.  Kamsdell  v.  BusweU,  54  Me.  546 
(1867).  Contra. 

11  Part  of  the  opinion  omitted. 


222  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

empannelled  and  sworn  according  to  law;  and  that  the  claimants,  to 
wit :  the  plaintiffs,  did  not  succeed  in  establishing  the  property  to 
be  theirs,  the  jury  not  agreeing. 

To  the  facts,  thus  set  forth  in  the  defendant's  pleas,  the  plaintiffs, 
in  substance  replied,  that  they  were  the  owners,  in  fee,  of  the  slaves 
in  contest,  the  same  having  been  conveyed  to  them  in  trust,  for  the 
use  of  Mrs.  Richardson,  wife  of  said  John  C.  Richardson,  by  Sam- 
uel Arbuckle,  who  was  seised  at  the  date  of  his  conveyance,  and  that, 
for  the  purpose  of  effectuating  the  terms  of  the  trust,  they  delivered 
the  slaves,  in  the  declaration  mentioned,  to  said  Richardson  and  wife, 
to  be  held  by  them,  as  bailees  of  the  plaintiffs,  and  not  in  the  proper 
right  of  the  said  Richardson,  as  his  own  property.  To  the  replications 
of  the  plaintiffs,  the  defendant  demurred.  The  court  gave  judgment 
on  the  demurrer,  for  the  defendant,  to  reverse  which,  the  plaintiffs 
have  appealed. 

It  is  a  principle  in  pleading,  that  whatever  is  well  set  forth  in  a 
plea  and  not  controverted  in  the  replication,  is  admitted  to  be  true. 
Thus,  all  the  material  facts  stated  in  the  pleas,  in  this  case,  are  ad- 
mitted ;  and  the  plaintiff's  attempt  to  avoid  them,  by  asserting  title 
in  themselves,  to  the  slaves.    Two  questions  are  made  upon  the  record : 

1st.  Can  the  owner  of  personal  property,  or  a  chattel,  taken  in 
execution,  and  who  is  not  a  defendant  in  the  execution,  maintain  the 
action  of  replevin  for  the  goods,  in  the  actual  possession  of  the  de- 
fendant, in  the  execution,  at  the  time  of  the  levy  made  on  them? 

And  2d.  Can  the  officer,  levying  the  execution,  exonerate  himself 
from  a  recovery  in  an  action  of  replevin,  by  shewing  that  he  empan- 
nelled a  jury,  to  try  the  right  of  property ;  and  that  the  jury  failed 
to  decide,  that  the   property   belonged   to  the  claimant? 

In  regard  to  the  first  question,  we  are  of  opinion,  that  the  defend- 
ant in  the  execution,  cannot  successfully  maintain  ,an  action  of  re- 
plevin, against  the  officer  making  the  levy.^^     The  institution  of  the 

12  Mitchell  V.  Roberts,  50  N  H.  4S6  (1871);  Hawk  v.  Lepple,  51  N.  J.  Law, 
208,  17  Atl.  351,  4  L.  R.  A.  48,  14  Am.  St.  Rep.  677  (1SS9) ;  Gardner  v.  Camp- 
bell, 15  Johns.  (N.  Y.)  401  (1818)  ;  Morris  v.  De  Witt,  5  Wend.  (N.  Y.)  71 
(1830)  ;  Pott  V.  Oldwine,  7  Watts  (Pa.)  173  (1838) ;  Dearmou  v.  Blackburn,  1 
Sneftd  (Tenn.)  390,  GO  Am.  Dec.  160  (1853) ;  Buck  v.  Colbath.  3  Wall.  341,  18 
L.  Ed.  257  (1SG5)  semble.  Accord.  Lovett  v.  Barkhardt,  44  Pa.  173  (1SG3) ; 
Loop  V.  Williams,  47  Vt.  407  (1875 :  common-law  rule  changed  by  statute). 
Contra. 

So  of  goods  levied  on  for  taxes.  Mt.  Carbon  Co.  v.  Andrews,  53  111.  176 
(1870). 

But  if  the  goods  levied  on  are  exempt  replevin  may  be  sustained.  Allen 
V.  Ingram,  39  Fla.  239,  22  South.  651  (1897:  statutory  in  part);  Elliott  v. 
Whitmore,  5  Mich.  532  (1858);  Ferguson  v.  Washer,  49  Mich.  390,  13  N.  W. 
■^88  (1882)  semble.  Accord.  Hawk  v.  Lepple,  51  N.  J.  Law,  208,  17  Atl.  351, 
4  L.  R.  A.  48,  14  Am.  St.  Rep.  677  (1889).  Contra. 

If  the  process  under  which  the  goods  were  seized  is  void,  for  lack  of  ju- 
risdiction or  otherwise,  replevin  may  be  maintained.  Adams  v.  Hubbard,  30 
Mich.  104  (1874) ;  Breckinridge  v.  Johnson,  57  Miss.  371  (1879)  ;  Smith  v. 
Huntington,  3  N.  H.  76,  14  Am.  Dec.  331  (1824)  semble;    Hawk  v.  Lepple,  51 


I 


Ch.  5)  REPLEVIN  223 

action,  by  the  defendant  in  the  execution,  would  be  a  contempt  of  the 
authority  of  the  court,  rendering  the  judgment,  upon  which,  the  ex- 
ecution issued,  and  ought  to  be  punished  as  such.  See  1  Chitty,  160, 
and  the  authorities  there  cited. 

If  a  defendant  in  the  execution,  after  judgment  had  been  legally 
entered  against  him,  upon  a  full  and  fair  trial,  were  tolerated  in 
bringing  his  action  of  replevin,  and  by  it,  to  replevy  the  goods,  taken 
in  execution,  there  might  be  no  end  to  the  delays,  which  the  defend- 
ant might  thus  create.  Justice  and  the  end  of  the  law,  would  be 
effectually  subdued ;  for,  although,  the  defendant  in  the  execution, 
and  plaintiff  in  the  action  of  replevin,  would  fail  upon  the  trial,  and 
judgment  would  be  rendered  in  favor  of  the  officer,  for  the  restora- 
tion of  the  goods ;  yet  the  action  might  be  again  and  again  renewed, 
and  delays,  without  end,  effected.  To  prevent  such  abuses,  and  such 
contempts  of  the  authority  of  courts,  to  prevent  the  monstrous  ab- 
surdity of  rendering  the  remedies,  afforded  by  law,  with  a  view  to 
redress  wrongs,  the  means  of  defeating  the  very  end  to  be  accom- 
plished ;  the  defendant  in  an  execution,  who  should  thus  prevent  the 
action  of  replevin,  might,  and  ought  to  be  severely  punished  for  con- 
tempt. 

Although,  such  should  be  the  rule,  in  respect  to  the  defendant  in 
the  execution,  the  reasons  for  it,  are  not  equally  strong,  in  relation 
to  those,  whose  property  may  be  seised  under  executions,  against 
others.  Indeed,  we  are  of  opinion,  that  the  reason  entirely  fails, 
where  an  execution  issues  against  A,  and  the  officer  levies  on  the  prop- 
erty of  B.  It  is  trespass,  on  the  part  of  the  officer,  to  seise  property 
not  owned  by  the  defendant  in  the  execution;  and  we  perceive  no 
reason,  founded  on  good  policy,  which  should  prevent  the  real  owner 
from  maintaining  his  action  of  replevin,  although  some  adjudged  cases, 
may  be  found,  which  lean  against  it.  Chitty,  160,  lays  it  down  in 
general  terms,  "that  no  replevin  lies  for  goods,  taken  by  the  sheriff 
by  virtue  of  the  execution,  and  if  any  person  should  pretend  to  take 
out  a  replevin,  the  court  would  commit  him  for  a  contempt,  8zc." 
But  no  goods  can  with  propriety,  be  said  to  be  taken  by  virtue  of  the 
execution,  unless  the  goods  belong  to  the  defendant  in  the  execution ; 
for  an  execution  against  A,  is  no  authority  and  constitutes  no  jus- 
tification for  taking  the  goods  of  B.  Where  the  goods  are  taken  by 
virtue  of  the  execution,  that  is,  when  the  goods  of  the  defendant  in 
the  execution,  are  taken,  we  admit  that  it  would  be  a  contempt  for 
any  person,  to  pretend  to  take  out  a  replevin.  It  would  be  more  ag- 
gravated, for  the  friend  of  the  defendant  in  the  execution,  to  do  it, 
than  for  the  defendant  to  do  it  himself.    These  doctrines  do  not  em- 

N.  J.  Law,  208,  .212,  17  Atl.  351,  4  L.  R.  A.  48,  14  Am.  St.  Rep.  077  (1SS9) 
semble. 

A  replevin,  improper  by  the  above  rules,  is  a  contempt  of  court.  Dominua 
Rex  V.  Moukbouse,  2  Strange,  1184  (1743). 


224  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

brace  the  case  of  the  goods,  of  a  stranger  to  the  execution  and  judg- 
ment, who,  when  they  are  taken  in  good  faith,  resorts  to  the  action 
of  replevin,  to  obtain  redress.  The  case  of  Thompson  v.  Button,  14 
Johns.  (N.  Y.)  84;  and  the  case  of  Kerley  v.  Hume,  3  T.  B.  Mon, 
(Ky.)  182,  tolerates  the  opinion,  that  a  stranger  to  the  execution, 
may  maintain  his  action  of  replevin.  These  cases,  also  prove,  that 
the  action  of  replevin,  is  not  confined  to  injuries,  resulting  from  ille- 
gal distresses  for  rent,  damage  feasant,  and  the  like.  That  it  is  a 
remedy,  co-extensive  with  that  of  trespass,  de  bonis  asportatis,  is  es- 
tablished in  New  York,   Pangburn  v.   Partridge,   7  Johns.   140-143, 

5  Am.  Dec.  250,  and  Parkhurst  v.  Van  Cortland,  14  Johns.  17,  7  Am. 
Dec.  427.  See,  also,  Chitty,  159.  We  see  no  reason  for  restricting 
the  remedy,  by  action  of  replevin,  to  narrower  bounds  in  this  state. 
The  doctrines  laid  down  by  a  majority  of  the  court,  in  the  case  of 
Bouldin  v.  Alexander,  7  T.  B.  Mon.  (Ky.)  424,  and  which  are  well 
fortified  by  authority,  prove  that  an  action  of  replevin,  is  an  appro- 
priate remedy,  in  behalf  of  all  strangers,  to  an  execution,  whose  prop- 
erty may  be  seised,  by  an  officer,  under  color  of  the  process. 

Applying  the  foregoing  views  to  the  facts  of  this  case,  we  find 
nothing  in  them,  which  can  lead  us  to  decide,  that  the  appellants  were 
not  entitled  to  maintain  their  action,  merely,  because  the  slaves  in 
controversy,  were  seised  by  Harriss,  to  satisfy  the  execution  against 
Richardson.^^ 

We  are  also  of  opinion,  that  the  taking  of  the  slaves  from  the  im- 
mediate possession  of  Richardson,  cannot  prevent  the  appellants  from 
maintaining  this  action,  if  it  be  true  as  they  allege,  that  Richardson 
was  no  more  than  their  bailee.  The  possession  of  the  bailee,  is  the 
possession  of  the  bailor.  The  general  property  of  a  chattel,  commonly 
unites  with  it,  the  possession  in  law,  although,  in  fact,  the  thing  may 
be  actually  possessed  by  another;  thus,  the  horse  of  the  farmer  is  in 
his  possession,  in  law,  although,  in  fact,  his  overseer,  or  apprentice, 
may  be  riding  or  working  the  horse,  in  the  performance  of  business, 
exclusively  his.  The  general  property  is  sufficient  to  maintain  the 
action  as  a  general  rule.  Chitty,  158.  It  is  not  necessary,  (as  con- 
tended by  the  appellee's  counsel)  to  maintain  the  action  of  replevin, 
that  the  taking  should  be  from  the  plaintiff  in  action.  The  taking 
may  be   from  a  feme  sole,  and  after  marriage,  the  husband  alone, 

13  Sharp  V.  Arthurs,  1  Houst.  (Del.)  353  (1S57) ;  White  v.  Jones,  3S  111. 
159  (1S(J5) ;  Schneider  v.  Burke,  86  111.  App.  160  (1898) ;  Parsley  v.  Huston.  3 
Blackf.  (Ind.)  348  (1834) ;  Ilsley  v.  Stubbs,  5  Mass.  280  (1809:  statutory,  sem- 
ble  contra  at  common  law) ;  Bruen  v.  Ogden.  11  N.  J.  Law,  370,  20  Am.  Dec. 
593  (1830) ;  Dunham  v.  Wyckoff,  3  Wend.  (N.  Y.)  280,  20  Am.  Dec.  695  (1829) ; 
Mead  v.  Kilday,  2  Watts  (Pa.)  110  (1833).  Accord.  Goodrich  v.  Fritz,  4  Ark. 
525  (1842) ;  Tyson  v.  Bowden,  8  Fla.  61,  71  Am.  Dec.  101  (1858) ;  Cromwell  v. 
Owings,  7  Har.  &  J.  (Md.)  53  (1826);    Bernheimer  v.  Martin,   66  Miss.  486, 

6  South.  326  (1889);  Smith  v.  Huntington,  3  N.  H.  76,  14  Am.  Dee.  331 
(1824) ;  Taylor  v.  Ellis,  200  Pa.  191,  49  Atl.  946  (1901 :  under  a  statute  ante- 
dating Mead  v.  Kilday,  2  Watts  [Pa.]  110,  above).  Contra. 


Ch,  5)  REPLEVIN  225 

may  maintain  the  action.  Chitty,  159.  It  is  questionable,  whether 
a  mere  naked  bailment,  for  safe  keeping,  gives  the  bailee  such  a  right, 
as  to  enable  him,  to  maintain  the  action,  in  case  the  goods  are  taken 
from  him.     1  Johns.  (N.  Y.)  380. 

In  Cresson  and  others  v.  Stout,  17  Johns.  (N.  Y.)  116,  8  Am.  Dec. 
373,  the  plaintiffs  were  permitted  to  recover  in  replevin,  although, 
the  goods,  were  not  in  their  possession,  when  taken  by  the  sheriff's 
vendee,  who  was  defendant.  If  the  defendant  in  the  execution,  is 
actually  possessed  of  property  as  bailee,  merely,  say  a  horse,  which 
is  loaned  to  him  to  ride  a  few  miles,  the  horse  is  not  subject  to  the 
execution.  The  sheriff  must  levy  at  his  peril,  and  is  a  trespasser, 
if  he  take  property  not  liable.  In  general,  the  action  of  replevin, 
can  be  maintained,  where  trespass  will  lie.  Pangburn  v.  Partridge, 
7  Johns.  (N.  Y.)  142,  5  Am.  Dec.  250.  In  Bouldin  v.  Alexander, 
this  court  intimated,  that  a  bill  in  chancery,  to  enjoin  a  sale  of  prop- 
erty, illegally  seised,  by  an  officer,  might  be  tolerated;  but  for  the 
remedy  afforded  by  action  of  replevin.  If  the  action  is  restricted,  so 
that  the  remedy  cannot  extend  to  9.II  cases  of  illegal  seizures,  by  ofifi- 
cers,  there  will  still  remain  a  class  of  cases,  in  which  the  owner  of 
property,  taken  in  execution,  contrary  to  law,  must  stand  by  and  see 
it  sold,  without  power  to  prevent  it ;  and  be  driven  at  last,  to  his 
action  of  detinue  and  trover,  and  that  possibly,  against  an  insolvent 
vendee  of  the  officer,  in  which  his  remedy  would  be  a  mockery. 

The  answer  to  be  given  to  the  second  question  or  point,  will  de- 
pend on  the  construction  of  the  act  of  1803,  concerning  the  trial  of 
the  right  of  property,  taken  under  execution.    2  Dig.  1047.     *     *     * 

Wherefore,  the  judgment  of  the  circuit  court  is  reversed,  and  the 
cause  remanded,  with  instructions,  to  permit  the  defendant,  to  amend 
his  pleas,  if  he  asks  leave  to  do  so,  and  to  progress  with  the  cause, 
in  conformity  hereto ;  and  if  he  does  not  amend,  then  to  render  judg- 
ment upon  the  demurrer,  in  favor  of  the  plaintiffs. 

The  appellants  must  recover  their  costs. ^* 

14  Sharp  V.  Arthurs,  1  Hoiist.  (Del.)  353  (1857) ;  Chinn  v.  Russell,  2  Blackf. 
(Ind.)  172  (1S2S).  Accord.  Cromwell  v.  Owiugs,  7  Har.  &  J.  (Md.)  55  (1826: 
but  holding  replevin  will  not  lie  even  where  taken  from  possession  of  third 
party);  Thompson  v.  Button,  14  .Tohns.  (N.  Y.)  84  (1817)  semhle ;  Gardner  v. 
Campbell.  15  Johns.  (N.  Y.)  401  (1818) ;  Judd  v.  Fox,  9  Cow.  (N.  Y.)  259  (1828) 
semble.  Contra. 

Whit.C.L.Pl.— 15 


226  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

SECTION  2.— NECESSARY  ALLEGATIONS 


DECLARATION    IN    REPLEVIN. 

(Encyclopedia  of  Forms.     Forms  No.  6,939  and  No.  17,730.) 
State  of ,}  Court  of County. 


County,  j  ^^-  Term,  A.  D.  18—. 


,  plaintiff  in  this  suit,  by  ,  his  attorney,  complains  of 

,  defendant  in  this  suit,  of  a  plea  wherefore  he  wrongfully  took 

the  goods  and  chattels  of  the  said  plaintiff  and  unlawfully  detained  the 

same  until,  etc.     For  that  the  said  defendant,  on  the  day  of 

,  in  the  year  18 — ;  at  No.  ,  street  in  the  city 

of  ,  in  the  county  aforesaid,  wrongfully  took  the  goods  and 

chattels,  to  wit:  (describing  them),  of  the  said  plaintiff,  of  the  value 
of dollars,  and  unjustly  detained  the  same  until,  etc. 

And  also  wherefore  the  defendant  unjustly  detained  the  goods  and 

chattels  until,  etc.     For  that  the  said  defendant,  on  the  day 

of  ,  in  the  year  18 — ,  at  No.  ,  '  street  in  the 

city  of ,  in  the  county  aforesaid,  the  goods  atid  chattels  of  the 

said  plaintiff,  to  wit,  (describing  them),  of  the  value  of  dollars, 

wrongfully  detained,  etc. 

But  that  the  said  defendant,  although  often  requested,  hath  refused, 
and  yet  refuses,  to  deliver  the  said  goods  and  chattels  above  mentioned 
to  the  said  plaintiff. 

Wherefore  the  said  plaintiff  says  he  is  injured  and  hath  sustained 

damage  to  the  amount  of dollars,  and  therefore  he  brings  his 

suit,  etc.  ,  Plaintiff's  Attorney. 


BOND  V.  MITCHELL. 

(Supreme  Court  of  New  York,  1848.    3  Barb.  304.) 

This  was  an  action  of  replevin.  The  second  count  of  the  declaration 
was  as  follows:  "And  also  for  that  the.  said  defendant  afterwards,  to 
wit,  on  the  first  day  of  June,  1846,  in  the  town  of  Shawangunk,  in  the 
county  of  Ulster  aforesaid,  took  a  certain  horse,  wagon,  and  harness 
out  of  the  possession  of  the  plaintiff,  and  to  the  possession  of  which  the 
said  plaintiff  was  and  is  lawfully  entitled,  of  the  value  of  three  hundred 
dollars,  and  unjustly  detained,  &c.  &c."  The  defendant  demurred,  and 
stated  for  cause  of  demurrer,  that  the  said  second  count  set  forth  the 
evidence  of  facts  and  matters  of  law;  that  it  did  not  appear  in  said 
count,  except  by  argument,  inference,  and  the  evidence  of  facts,  that 
the  plaintiff  had  any  right,  title  or  interest  in  or  to  the  goods  and  chat- 
tels in  said  count  mentioned.    The  plaintiff  joined  in  demurrer. 


1 


Ch.  5)  REPLEVIN  227 

By  the  Court,  Parker,  J.  According  to  well  established  precedents, 
it  should  have  been  alleged  in  the  declaration,  that  the  articles  replevied 
were  the  goods  and  chattels  "of  the  plaintiff."  2  Chit.  PI.  364.  In- 
stead of  that,  the  plaintiff  says  the  goods  were  taken  by  the  defendant 
out  of  his  possession,  and  that  he  was  entitled  to  the  possession  of 
them.  It  is  true,  that  proof  that  the  defendant  took  the  property  out 
of  the  plaintiff's  possession,  would  support  the  allegation  that  they 
were  the  goods  and  chattels  of  the  plaintiff,  (Rogers  v.  Arnold,  12 
Wend.  39  ;)  but  the  plaintiff  is  not  at  liberty  to  state,  in  his  declaration, 
the  evidence  of  his  title,  in  place  of  an  averment  of  title.  In  this  re- 
spect the  pleading  is  defective.  Prosser  v.  Woodward,  21  Wend.  205. 
The  plaintiff  should  have  claimed  the  property  to  belong  to  him.  The 
defendant  could  then  have  traversed  such  allegation  by  pleading  prop- 
erty in  himself,  or  in  a  third  person.  And  the  materiality  of  such  an 
averment  is  apparent  from  the  fact  that  a  plea  of  property,  in  replevin, 
only  puts  in  issue  the  plaintiff's  allegation  of  title  to  the  property.  An- 
stice  V.  Holmes,  3  Denio,  244.    Rogers  v.  Arnold,  12  Wend.  30. 

But  even  if  the  defect  above  specified  is  one  of  form  and  not  of 
substance,  the  defendant  may  nevertheless  avail  himself  of  it,  in  this 
case,  the  demurrer  being  special.  Established  precedents  are  not  to  be 
disregarded  in  pleading,  even  in  a  matter  of  mere  form.  Anstice  v. 
Holmes,  above  cited;  Titus  v.  Follet,  2  Hill,  318. 

There  must  be  judgment  for  the  defendant  on  the  demurrer,  with 
leave  to  the  plaintiff  to  amend,  on  payment  of  costs.^' 


CARTER  v.  PIPER. 

(Superior  Court  of  New  Hampshire,  187G.     57  N.  H.  217.) 

From  Carroll  Circuit  Court. 

Replevin,  for  a  bear  claimed  by  the  plaintiffs,  and  alleged  to  have 
been  wrongfully  taken  and  detained  by  the  defendant. 

The  writ  is  dated  November  16,  1874. 

The  plea  was  the  general  issue,  and  a  brief  statement  setting  forth, 
— 1st,  that  the  bear  was  the  property  of  the  defendant;  2d,  that  it  was 

16  Some  allegation  of  plaintiff's  right  is  necessary.  Lewis  v.  Clagett,  Smith 
(N.  H.)  187  (1807)  semble;  Luther  v.  Arnold,  8  Rich.  (S.  C.)  24,  62  Am.  Dec. 
422  (1854)  semble. 

"Of  the  plaintiff"  is  sufficient.  Bern  v.  Mattaire,  Cas.  t.  Hardw.  119 
(1735) ;  Pattison  v.  Adams,  7  Hill  (N.  Y.)  126,  42  Am.  Dec.  59  (184.5)  semble. 
An  allegation  of  right  to  possession  is  not  necessary.  Tufts  v.  Johnson,  29 
111.  App.  112  (1888)  semble;  Pattison  v.  Adams,  Lalor's  Supp.  (N.  Y.)  4L>(! 
(184-4).  A  general  allegation  of  ownership  suffices  in  a  bill  in  equity  sup- 
plementary to  replevin.  Strickland  v.  Fitzgerald,  7  Cush.  (Mass.)  530  (1851). 
If  the  plaintiff  prima  facie  could  not  have  title  then  a  special  allegation  of 
the  plaintiff's  right  is  necessary.  Gentry  v.  Bargis,  6  Blackf.  (Ind.)  261  (1842 : 
plaintiffs  were  husband  and  wife).  Accord.  Bern  v.  Mattaire,  Cas.  t.  Ilardw. 
119  (1735:    sgmp  as  last^.  Contra. 


228  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

the  property  of  the  plaintiffs  and  the  defendant  jointly ;  3d,  that  it  was 
the  property  of  the  plaintiffs,  defendant,  and  others  jointly.     *     *     * 

The  plaintiffs  claimed  that  they  made  a  demand  on  the  defendant 
for  the  bear.  At  the  time  of  the  alleged  demand  the  bear  was  on  the 
defendant's  premises  in  Albany.  The  court  instructed  the  jury  that  if 
they  found  that  the  bear  was  the  exclusive  property  of  the  plaintiffs, 
and  that  a  demand  was  made  by  the  plaintiffs  on  the  defendant  for  the 
bear  before  suit,  they  might  bring  in  a  verdict  for  the  wrongful  deten- 
tion of  the  bear. 

In  answer  to  a  question  propounded  by  the  court,  the  jury  found 
that  the  bear  was  the  exclusive  property  of  the  plaintiffs,  and  rendered 
a  verdict  against  the  defendant  for  one  dollar  damages. 

The  defendant  excepted  to  the  foregoing  instruction,  and  moved  to 
set  the  verdict  aside. 

The  bear  remained  on  the  defendant's  premises  in  Albany  in  his  care 
after  it  was  conveyed  home  by  the  defendant  in  his  wagon,  and  was 
there  when  it  was  replevied  by  the  plaintiffs. 

The  defendant  went  to  the  hunting-ground  with  a  horse  and  wagon, 
a  little  in  advance  of  the  plaintiffs,  on  the  morning  of  the  capture  of 
the  bear. 

The  writ  alleged  that  the  place  of  taking  and  detention  was  in  Tam- 
worth. 

There  was  no  evidence  of  any  tender  or  payment  to  the  defendant 
of  any  sum  for  the  care  and  custody  of  the  bear  by  the  plaintiffs. 

After  the  plaintiffs  rested  their  case,  the  defendant,  by  counsel, 
moved  and  argued  a  motion  of  nonsuit,  which  the  court  overruled,  and 
the  defendant  excepted. 

The  plaintiffs  and  one  Bragdon  composed  one  hunting  party,  and 
the  defendant  and  his  boy  and  hired  man  the  other  party. 

The  defendant  received  the  bear  after  the  capture  into  his  wagon, 
and  conveyed  it  to  his  home  in  Albany,  with  the  consent  of  the  plain- 
tiffs ;  but  there  was  evidence  tending  to  show  that  Piper  said  he  would 
take  the  cub,  and  carry  him  home  for  the  plaintiffs,  and  that  Carter 
said  he  should  claim  the  cub. 

The  questions  arising  upon  the  foregoing  case  were  transferred  to 
the  superior  court  by  Rand,  J.  C.  C. 

Gushing,  C.  J.^°  This  is  said  to  be  an  action  brought  for  the  unlaw- 
ful taking  and  detaining  of  the  property  in  dispute.  The  action,  I 
suppose,  might  have  been  brought  under  the  act  of  1873,  under  which 
it  would  have  been  sufficient  to  allege  the  unlawful  detention  of  the 
property.  Until  that  statute  was  passed,  it  had  always  been  held  that 
replevin  would  not  lie  excepting  where  there  had  been  an  unlawful 
taking.     *     *     * 

It  appears  that  at  the  trial  of  this  case  the  plaintiffs  had  to  make 
out  under  the  general  issue  the  unlawful  taking  by  the  defendant,  and 

16  statement  of  facts  abridged  and  part  of  opinion  omitted. 


Ch.  5)  REPLEVIN  229 

it  is  clear  that  the  defendant  could  not  be  put  upon  his  defence  and 
called  upon  to  show  any  justification  which  he  might  have  had,  until 
the  plaintiff  had  made  out  his  case  under  the  general  issue. 

It  appears  from  the  amended  case,  that  the  evidence  showed,  before 
the  plaintiffs  rested  their  case,  that  the  bear  was  taken  away  by  the 
consent  of  the  plaintiffs.  This  being  so,  there  could  be  no  unlawful 
taking,  which  was  the  matter  in  issue,  and  of  course  a  nonsuit  should 
have  been  ordered.     *     *     * 

I  see  no  reason  why  the  declaration  and  pleadings  might  not  be 
amended  so  as  to  relieve  the  plaintiff  from  the  impossible  proof  which 
is  necessary  under  the  present  pleadings ;  but  on  the  pleadings  as 
they  stand,  it  is  clear  that  a  nonsuit  should  have  been  ordered. 

The  case  being  disposed  of  on  the  motion  for  nonsuit,  it  is  not  nec- 
essary to  propound  any  dicta  in  regard  to  the  instructions  excepted  to. 

Ladd  and  Smith,  JJ.,  concurred. 

Verdict  set  aside,  and  nonsuit  ordered.^^ 


SECTION  3.— DEFENSES 


GENERAL  ISSUE  IN  REPLEVIN  FOR  A  TAKING. 

(Encyclopedia  of  Forms.     Forms  No.  17,726  and  No.  17,759.) 

State. of  . 

The  Court  for  the  county  of  . 

State    of    ,1 

County  of  .j 

And  the  said  defendant,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  etc.,  and  says,  that  he  did  not  take  the 
said  goods  and  chattels  (describing  them),  in  the  said  declaration 
mentioned,  or  any  or  either  of  them,  or  any  part  thereof,  in  manner 
and  form  as  the  said  plaintiff  hath  above  thereof  complained  against 
him,  and  of  this  the  said  defendant  puts  himself  upon  the  country,  etc. 

,  Attorney  for  Defendant. 

iTLothrop  V.  Locke,  59  N.  H.  532  (1880).  Accord.  Riley  v.  Littlefield,  84 
Micli.  22,  26,  47  N.  W.  576  (1S90:    by  statute)  semble.  Contra. 

If  in  replevin  for  detention  the  declaration  contains  an  allegation  of  a 
taking,  that  allegation  is  surplusage  and  need  net  be  proved.  Cullum  v.  Be- 
vans,  6  Ilarr.  &  J.  (Md.)  469  (1825)  semble ;  Horsey  v.  Knowles,  74  Md.  602, 
22  Atl.  1104  (1891)  semble. 

An  allegation  that  the  taking  was  wrongful  is  -lecessary.  Reynolds  v. 
Lounsbury,  6  Hill  (N.  Y.)  534  (1844)  semble. 

For  the  difference  between  the  detiuuit  form  and  tVie  detinet  form  see 
Benesch  v.  Weil,  69  Md.  276,  279,  14  Atl.  666  (ISSS). 


230  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

GENERAL  ISSUE  IN  REPLEVIN  FOR  A  DETENTION. 

(Encyclopedia  of  Forms.     Forms  No.  17,726  and  No.  17,760.) 

State  of  . 

The  Court  for  the  county  of  , 

State    of    ,] 

County  of  .j 

And  the  said  defendant,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  etc.,  and  says,  that  he  does  not  detain 
the  said  goods  and  chattels  (describing  them)  in  the  said  declaration 
mentioned,  or  any  or  either  of  them,  or  any  part  thereof,  in  manner 
and  form  as  the  said  plaintiff  hath  above  thereof  complained  against 
him,  and  of  this  the  said  defendant  puts  himself  upon  the  country,  etc. 
■ ,  Attorney  for  the  Defendant. 


SPECIFIC  TRAVERSE  IN  REPLEVIN. 

(Encyclopedia  of  Forms.     Forms  No.  17,726  and  No.  17,762.) 

State  of  . 

The Court  for  the  county  of  — ' . 

State    of    ,| 

County  of  — > .j 

And  the  said  defendant,  by ,  his  attorney,  comes  and  defends 

the  wrong  and  injury,  when,  etc.,  and  says,  that  the  said  plaintiff 
ought  not  to  have  or  maintain  his  aforesaid  action  against  him,  the 
said  defendant,  because  he  says  that  the  said  goo4s  and  chattels  in 
the  said  declaration  mentioned,  at  the  said  time,  when,  etc.,  were  the 

property  of  the  said  defendant  (or  of  one ),  and  not  of  the  said 

plaintiff',  as  by  the  said  declaration  is  above  supposed.  And  this  he, 
the  said  defendant,  is  ready  to  verify.  Wherefore  he  prays  judgment 
if  the  plaintiff  ought  to  have  or  maintain  his  aforesaid  action  against 
him,  the  said  defendant,  and  for  a  return  of  the  said  goods  and  chat- 
tels, together  with  his  damages  and  costs  in  this  behalf,  according  to 
the  form  of  the  statute  in  such  case  made  and  provided,  to  be  ad- 
judged to  him,  etc. 

,  Attorney  for  Defendant. 


Ch.  6)  REPLEVIN  231 

COMBINED  AVOWRY  AND  COGNIZANCE. 

(3  CMtty,  Pleading  [IStli  Am.  Ed.]  pp.   *1043   and  *1047.) 

In  the  the  King's  Bench,  (or  "C.  P."  or  "Exchequer.") 

C.  D.  &  E.  F.]  '^^'"^'  ^^"-  ^- 

ats.  }  And  the  said  C.  D.  and  E.  F.  by  G.  H.  their  attorney, 
A.  B.  J  come  and  defend  the  wrong  and  injury,  when,  &c.  and 
the  said  C.  D.  in  his  own  right  well  avows,  and  the  said  E.  F.  as 
bailiff  of  the  said  C.  D.  well  acknowledges  the  taking  of  the  said 
(goods  and  chattels)  in  the  said  declaration  mentioned,  in  the  said 
(dwelling-house)  in  which,  &c.  and  justly,  &c.  because  they  say  that 

the  said  plaintiff  for  a  long  time,  to  wit,  the  space  of  ■  years 

next  before  and  ending  on  a  certain  day,  to  wit,  the  day  of 

A.  D. and  from  thence  until  and  at  the  said  time,  when 

&c.  held  and  enjoyed  the  said  dwelling  house  in  which,  &c.  with  the 
appurtenances,  as  tenant  thereof  to  the  said  C.  D.  by  virtue  of  a  cer- 
tain demise  thereof  to  the  said  plaintiff  theretofore  made,  at  and  under 
a  certain  yearly  rent,  to  wit,  the  yearly  rent  of  £ ,  payable  quar- 
terly, on,  &c.  (stating  the  days  of  payment)   in  every  year,  by  even 

and  equal  portions,  and  because  the  sum  of    £ of  the  rent 

aforesaid,  for  the  space  of  ,  ending  as  aforesaid,  on  the  said 

day  of  — ,  in  the  year  aforesaid,  and  from  thence  until, 

and  at  the  said  time  when,  &c.  was  due  and  in  arrear  from  the  said 
plaintiff  to  the  said  C.  D.,  he  the  said  C.  D.  well  avows,  and  the 
said  E.  F.,  as  bailiff  of  the  said  C.  D.  well  acknowledges,  the  taking 
of  the  said  goods  and  chattels  in  the  said  dwelling  house,  in  which, 
&c.  and  justly,  &c.  as  for  and  in  the  name  of  a  distress  for  the  said 
rent  so  due  and  in  arrear  to  the  said  C.  D.  as  aforesaid,  and  which 
still  remains  due  and  unpaid.  And  this  they  the  said  defendants  are 
ready  to  verify;  wherefore  they  pray  judgment  and  a  return  of  the 
said  (goods  and  chattels)  together  with  their  damages,  &c.,  accord- 
ing to  the  form  of- the  Statute  in  such  case  made  and  provided,  to  be 
adjudged  to  them,  &c. 


HOPKINS  v.  BURNEY. 

(Supreme  Court  of  Florida,  1848.    2  Fla.  42.) 

Error  to  Duval   Circuit  Court,  where  this  case  was  tried  before 
Judge  Macrae. 

Douglas,  Chief  Justice,^ ^  delivered  the  following: 
This  is  an  action  of   replevin  instituted   in  the  Circuit  Court  of 
Duval  county  by   Benjamin  Hopkins   and    Solomon   Moody  against 
Arthur  Burney  to  recover  a  certain  negro  slave  named  Charles.    The 

18  Part  of  the  opinion  omitted. 


232  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

declaration  contains  but  a  single  count  to  which  a  plea  of  "non  cepit 
mode  et  forma"  was  put  in,  but  was  on  the  same  day  on  which  it  was 
filed  withdrawn  by  leave  of  the  court  for  reasons  stated  in  the  rec- 
ord, which  however  are  not  material  to  the  decision  of  this  case. 

*  *  *  On  the  next  day,  a  jury  was  empanelled  and  sworn  "well 
and  truly  to  try  the  issue  joined  between  the  parties,"  who  found 
for  the  defendant  and  assessed  his  damages  at  one  hundred  and 
twenty  dollars  for  the  detention  of  the  said  negro  Charles  from  the 
25th  day  of  November,  1846,  until  the  18th  day  of  November,  1847, 
and  further  that  the  defendant  was  entitled  to  a  return  of  the  said 
negro  Charles,  upon  which  verdict  judgment  was  entered  for  the  sum 
so  found,  with  interest  thereon,  until  paid,  and  that  said  plaintiffs 
return  to  said  defendant  the  said  negro  Charles,  and  that  a  writ  of 
restitution  be  awarded,  and  that  said  plaintiffs  pay  to  said  defendant 
the  costs  of  these  proceedings  taxed  at  twenty-one  dollars  thirty-two 
cents.     *     *     * 

Whereupon  the  plaintiffs  sued  out  their  writ  of  error  to  the  said 

Circuit  Court,  and  have  herein  assigned  the  following  error,  to  wit: 

*  *     * 

Third.  The  court  erred  in  charging  the  jury  that  it  was  incumbent 
on  the  plaintiffs  to  shew  by  evidence  affirmatively,  that  the  property 
belonged  to  them,  or  that  they  had  such  right  of  possession  as  could 
not  be  lawfully  divested  by  the  defendant. 

Fourth.  The  court  erred  in  charging  the  jury  that  the  plaintiffs 
must  prove  that  the  slave  was  wrongfully  taken.     *     *     * 

The  third  error  is  deemed  to  be  well  assigned.  Under  the  plea  of 
non  cepit  it  was  not  incumbent  on  the  plaintiffs  to  prove  that  the  slave 
Charles  belonged  to  them,  and  the  court  should  have  so  charged  the 
jury,^®  The  plea  admits  that  fact,  and  puts  in  issue  only  the  taking 
(as  alleged  in  the  declaration,)  and  the  detention.  Mackinley  v.  AIc- 
Gregor,  3  Whart.  (Pa.)  369,  31  Am.  Dec.  522;  Buckley  and  others 
V.  Handy,  2  Miles  (Pa.)  449;  Galusha  v.  Butterfield  et  al.,  2  Scam. 
(111.)  227;  Seymour  v.  Billings,  12  Wend.  (N.  Y.)  286:  1  Stark. 
Ev.  715;  2  Leigh's  Nisi  Prius,  1330;  Bemus  v.  Beekman,  3  Wend. 
(N.  Y.)  667;  WilHams  v.  Welsh,  5  Wend.  (N.  Y.)  290.  In  this 
last  case  the  plea  cepit  in  alio  loco,  was  put  in  by  the  defendant,  and 
the  court  below  decided  that  the  plaintiff  must  make  out  his  case  in 
the  same  manner  as  he  would  have  been  required  to  do,  had  the 
plea  non  cepit  been  interposed.^"  The  plaintiff  proved  the  taking  at 
the  place  charged  in  the  declaration.     Thfe  case  was  carried  up,  and 

laWildman  v.  Norton,  1  Ventr.  249  (1673);  Carroll  v.  Harris,  19  Ark.  237 
(1857)  semble ;  Eaves  v.  King,  1  Har.  (Del.)  141  (1833) ;  Van  Namee  v.  Brad- 
ley, 69  111.  299  (1873);  Vickery  v.  Sherburne,  20  Me.  34  (1841);  Smith  v. 
Snyder,  15  Wend.  (N.  Y.)  324  (1836) ;  Wiley  v.  McGrath,  194  Pa.  498,  45  Atl. 
331,  75  Am.  St.  Rep.  709  (1900).  Accord. 

2  0  Non  cepit  denies  the  place  of  taking.  Anonymous,  2  Mod.  199  (1676) ; 
Johnson  y.  Wollyer,  1  Str.  507  (1722). 


Ch.  5)  REPLEVIN  233 

the  Supreme  Court  of  New  York  held  that  this  ruling  was  right. 
Chief  Justice  Savage  in  delivering  the  opinion  of  that  court,  said, 
"this  plea  does  not  admit  the  taking  as  the  plaintiff  has  laid  it;  it 
traverses  the  place  and  in  this  action  the  place  is  material.  The  plea 
denies  the  taking  at  the  place,  but  if  the  plea  of  non  cepit  alone  be 
put  in  and  it  appear  that  the  defendant  had  the  goods  in  his  custody 
in  the  place  alleged  in  the  declaration,  the  plaintiff  will  be  entitled  to 
a  verdict  on  this  plea."  ^^  Leigh's  Nisi  Prius,  1330 ;  Walter  v.  Ker- 
sop,  2  Wilson,  354:,  355.  But  if  the  defendant  proves  the  taking  in 
another  place,  the  plaintiff  will  (according  to  the  rule  laid  down  in 
1  Strange,  507)  be  non  suited.  As  however,  our  tenth  general  rule 
of  practice  (page  12,  pamphlet;  rule  13,  page  5,  annexed  to  Acts 
of  the  General  Assembly  of  1845)  provides  that  the  plaintiff  shall 
in  no  case  be  compelled  to  submit  to  a  nonsuit,  the  rule  here  would 
be  different.  The  plaintiff  would  have  a  right  to  submit  the  proof 
to  a  jury  but  would  not  on  such  proof  be  entitled  to  a  verdict.  The 
plea  of  non  cepit,  admits  the  property  of  the  thing  taken  to  be  in 
the  plaintiffs  in  the  action,  and -if  the  defendant  means  to  dispute 
the  question  of  property,  he  must  plead  it  specially.  He  will  not  be 
allowed  to  dispute  the  ownership  under  an  issue  which  only  denies  the 
taking.  2  Phil.  Ev.  126;  1  Chitty's  PL  159;  Bemus  v.  Beekman,  3 
Wend.  (N.  Y.)  673. 

The  fourth  error  is  also  well  assigned.  The  slave  in  controversy 
(being  admitted  by  the  plea  of  non  cepit,  to  be  the  property  of  the 
plaintiffs,  it  results  as  a  matter  of  course,  in  the  absence  of  all  proof 
to  the  contrary,)  that  the  taking  and  carrying  away  of  said  slave 
was  wrongful.  The  taking  and  carrying  away  of  a  personal  chattel 
of  another  person,  to  his  damage  is  (prima  facie  at  least)  a  trespass. 
1  Saund.  on  PI.  and  Ev.  84,  notes  2,  3;  Toller  on  Executors,  112; 
Cro.  Jac.  362;  2  Bouvier's  L.  Diet,  title  "Trespass,"  579. 

And  proof  that  the  property  was  in  possession  of  the  defendant 
at  the  place  charged  in  the  declaration,  is  evidence  of  such  taking. 
Walton  V.  Kersop,  2  Wilson,  354,  355;  Croke  Eliz.  869;  1  Saund. 
on  PI.  and  Ev.  347,  note  1;  Bull.  N.  P.  54;  7  Leigh's  Nisi  Prius, 
1330;  Amos  v.  Sinnott,  4  Scam.  (111.)  445.  (In  this  last  case  it 
was  held  that  a  plea  of  non  cepit  in  replevin  for  a  wrongful  detention 
presents  an  immaterial  issue.)  ^^ 

The  case  of  Moore  v.  E.  Moore,  administrator  of  N.  Moore,  4  Mo. 
421,  is  also  in  point. 

21  Walton  V.  Kersop,  2  Wils.  354  (1767);  Abercrombie  v.  Parkhunst,  3  B.  & 
P.  480  (1801)  semble.  Accord. 

22  Walpole  V.  Smith,  4  Blackf.  (Ind.)  304  (1S37).  Accord.  Compare  Mac- 
kinley  v.  McGregor,  3  Whart.  (Pa.)  309,  398,  31  Am.  Dec.  522  (1S3S). 

A  plea  of  not  guilty  amounts  to  non  detinet.  Dyer  v.  Brown,  71  111.  App. 
317  (1897). 

In  replevin  for  a  taking  non  detinet  raises  no  issue.  Davis  v.  Calvert,  17 
Ark.  85,  89  (1856). 


234  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

Under  the  plea  of  non  cepit  in  replevin,  the  court  will  not  permit 

the  defendant  to  give  evidence  of  special  matter  in  justification. ^^ 

McFarland  v.   Barker,   1    Mass.   153;    1   Leigh's   Nisi   Prius,   1330; 

Dane's  Abr.  of  Amer.  Law,  530,  §  5 ;    1  Saund.  on  PI.  and  Ev.  387. 
*     *     * 

Upon  a  full  review  of  this  case  we  are  constrained  to  reverse  the 
judgment  and  remand  the  cause  to  the  court  below  for  further  pro- 
ceedings not  inconsistent  with  this  opinion. 

Per  totam  curiam. 


FERRELL  v.  HUMPHREY. 

(Supreme  Court  of  Ohio,  1843.     12  Ohio,  112.) 

This  is  a  writ  of  error,  from  Lorain  County. 

An  action  of  replevin  was  brought  by  the  Administrators  of  Nelson 
Phelps  against  Willis  Ferrell.     The  defendant  plead — 

First:     Non  detinet. 

Second :     Property  in  himself. 

The  parties  went  to  trial,  without  any  replication  to  the  latter 
plea.  The  verdict  and  judgment  were  for  the  plaintiffs.  This  writ 
of  error  is  now  brought  to  reverse  the  judgment. 

Lane,  C.  J.  As  a  general  rule,  it  is  well  settled,  that  where  an 
issue  has  not  been  made  up  by  the  parties  to  a  suit,  the  court  can 
not  proceed  to  judgment  (Mason  v.  Embree,  5  Ohio,  277)  ;  and  that 
where  a  plea,  constituting  a  bar  to  the  action,  and  requiring  a  repli- 
cation, is  left  unanswered,  it  is  error  to  dispose  of  the  case,  while 
that  plea  remains  on  record,  without  replication  (Headly  v.  Roby,  6 
Ohio,  524).  But  it  is  equally  well  settled,  that  a  judgment  will  not 
be  reversed  for  mere  irregularity  of  proceeding,  or  error  in  form, 
where  it  appears  from  the  record  that  the  party  was  not  prejudiced 
by  such  irregularity. 

In  the  action  of  replevin,  under  our  statute,  the  jury  are  bound 
to  inquire  into  the  right  of  property,  and  right  of  possession,  of  the 
defendant,  in  the  goods  and  chattels  in  controversy,  and  if  they  shall 
find  him  entitled  to  either,  they  shall  assess  such  damages  as  are  right 
and  proper.     Swan's  St.  p.  786. 

Both  these  questions  are  put  in  issue  by  the  plea  of  non  detinet, 
as  was  decided  by  this  court  on  application  for  a  writ  of  error,  in  the 
case  of  Oaks  v.  Wyatt,  10  Ohio,  344.  Now  in  the  case  at  bar,  issue 
was  joined  upon  that  plea.  Without  deciding,  whether  the  plea  of 
property  in  the  defendant  would  be  good  under  our  statute,  it  is 
apparent  that  it  could  afford  the  defendant  no  advantage  that  he  had 

2  3  Mt.  Carbon  Co.  v.  Andrews,  53  111.  176  (1870:  that  defendant  held  goods 
under  a  tax  levy);  Barnes  v.  Tannehill,  7  Blackf.  (Ind.)  604  (1846:  that  de- 
fendant took  goods  as  an  estray).  Accord.  Carter  v.  Piper,  57  N.  H.  217 
<1876:    consent).  Contra. 


Ch.  5)  REPLEVIN  235 

not  under  the  other  issue.  The  precise  point  was  presented  to  the 
jury  under  the  plea  of  non  detinet;  and  if  they  had  found  it  for  the 
defendant,  the  verdict  must  have  been  in  his  favor.  It  is  not  easy, 
therefore,  to  discover  how  the  defendant  could  have  been  benefited 
by  a  replication  to  his  second  plea,  or  prejudiced  by  its  absence.  The 
judgment  must  be  affirmed. 
Judgment  affirmed.^* 


HOLLIDAY  V.  McKINNE. 
(Supreme  Court  of  Florida,  1886.     22  Fla.  153.) 

Appeal  from  the  Circuit  Court  for  Jackson  County. 

This  was  an  action  in  replevin,  commenced  in  January,  1884,  in 
Jackson  county,  by  John  H.  McKinne,  the  plaintiff  below,  against 
Thomas  Holliday,  the  appellant  and  defendant,  for  a  lot  of  corn,  fat 
hogs,  a  yoke  of  oxen  and  two  wagons.     *     *     * 

Mr.  Justice  Vanvalkenburgh-^^  dehvered  the  opinion  of  the  Court: 

The  first  error  alleged  is  that  the  court  erred  in  striking  out  the 
first,  third,  fourth  and  fifth  pleas  on  the  plaintiff's  motion.  The  first 
plea  was  a  disclaimer  of  possession  of  the  property,  and  a  denial  of 
any  interest  in  the  same,  except  as  an  heir  at  law  of  one  E.  K.  Holli- 
day, deceased,  to  whose  estate  the  property  belonged.  The  second 
plea  was  the  general  issue.  Third,  that  he  held  the  property  claimed 
as  administrator  of  the  estate  of  E.  K.  Holliday,  deceased.  Fourth, 
general  issue  as  the  administrator  of  such  estate.  Fifth,  that  the 
property  was  never  the  property  of  plaintiff,  but  was  the  property 
of  the  intestate  at  his  death  and  was  in  the  hands  of  defendant  as 
administrator.  The  statute  of  this  State,  (McC.'s  Dig.  862,  §  12,) 
in  relation  to  the  matter  of  pleas  in  such  actions,  is  as  follows :  "The 
defendant  may  plead  that  he  is  not  guilty  of  the  premises  charged 
against  him,  and  this  plea  shall  put  in  issue,  not  only  the  right  of  the 
plaintiff  to  the  possession  of  the  property  described  in  the  declaration, 
but  all  the  wrongful  taking  and  detention  thereof."  This  is  the  only 
statutory^  provision  in  relation  to  the  plea  in  such  case.  Under  such 
plea  of  the  general  issue  the  defendant  can  give  any  evidence  of  spe- 
cial matter  which  amounts  to  a  defence  to  the  plaintiff's  cause  of 
action.  The  plaintiff,  to  recover,  must  show  right  of  possession  in 
himself,  and  evidence  of  his  want  of  property  or  right  of  possession 
is  admissible  under  such  plea.  Under  this  statute,  under  the  pl^^  of 
not  guilty,  the  defendant  may  give  evidence  of  any  special  matter 

2  4  Patterson  v.  Fowler,  22  Ark.  398  (1860:  by  statute);  Noble  v.  Epperly, 
0  Ind.  414  (ISoo :  by  statute) ;  Prosser  v.  Woodward,  21  Wend.  (N.  Y.)  207 
(1839)  semble;  Emmons  v.  Dowe,  2  Wis.  322,  354  (1853)  semble.  Accord. 
Van  Namee  v.  Bradley,  69  111.  299  (1873) ;  Dyer  v.  Brown,  71  111.  App.  817 
(1897).  Contra. 

2  5  Statement  of  facts  abridged  and  part  of  the  opinion  and  the  concurring 
opinion  of  Mr.  Justice  Raney  are  omitted. 


236  PLEADINGS   IN   TORT   ACTIONS  (Part    1 

which  amounts  to  a  defence  to  the  plaintiff's  cause  of  action.  In  such 
actions  the  plaintiff  can  only  recover  upon  the  strength  of  his  own 
right  of  possession.  Sparks  v.  Heritage,  45  Ind.  66 ;  Lane  v.  Sparks, 
75  Ind.  278;  Yandle  v.  Crane,  13  Kan.  344;  5  Wait's  Actions  and 
Defences,  p.  494,  §  19;  Richardson  v.  Steele,  9  Neb.  483,  4  N.  W. 
83 ;   Child  v.  Child,  13  Wis.  17. 

In  Loomis  v.  Foster,  1  Mich.  165,  it  is  said  that  "the  general  issue, 
not  guilty,  puts  in  issue  every  fact  stated  in  the  declaration  necessary 
to  sustain  the  plaintiff's  action,  and  not  the  detention  only." 

In  Gibson  v.  Mozier,  9  Mo.  256,  the  court  held  that  "under  the 
plea  of  not  guilty  evidence  is  admissible  to  show  that  the  plaintiff 
is  not  entitled  to  the  possession  of  the  property  replevied,  and  that 
a  deed,  under  which  the  property  is  claimed,  is  void." 

The  pleas  were  properly  stricken  out.     *     *     * 

Judgment  reversed  and  a  new  trial  granted.^* 


LAMOTTE  v.  WISNER. 

(Court  of  Appeals  of  Maryland,  1879.     51  Md.  543.) 

Robinson,  J.,^''  delivered  the  opinion  of  the  Court: 

This  is  an  action  of  replevin  brought  by  the  appellee  to  recover 
certain  cattle  found  in  the  possession  of  the  defendant. 

The  defendant,  now  appellant,  pleaded: 

1st.  Non  cepit. 

2nd.  Property  in  George  W,  Stockdale,  as  bailiff. 

3rd.  Property  in  Benjamin  I.  Worthington. 

4th.  That  the  plaintiff  had  no  property  in  the  cattle. 

At  the  trial  the  plaintiff  proved,  that  the  cattle  in  question  formerly 
belonged  to  one  Benjamin  Worthington ;  that  in  May,  1877,  they 
were  driven  by  him  from  his  farm  in  Baltimore  County  to  the  farm 
of  the  plaintiff  in  Carroll  County  and  there  sold  to  him;  that  after 
said  sale  they  were  taken  from  the  possession  of  the  plaintiff,  and 
put  in  the  possession  of  the"  defendant. 

The  defendant,  on  the  other  hand,  proved  that  on  the  26th  of 
January,  1877,  the  cattle  were  taken  under  a  distress  for  rent  due  by 
the  said  Benjamin  Worthington  to  Benjamin  I.  Worthington,  that 
they  were  left  in  the  possession  of  the  tenant  at  his  request,  and  upon 
the  faith  of  an  agreement  by  him  to  pay  the  rent  on  or  before  the 

2  6  Clearly  this  statutory  plea  puts  the  plaintiff's  title  In  Issue.  Miller  v. 
Sleeper,  4  Cush.  (Mass.)  369  (1849) ;  Scudder  v.  Worster,  11  Cush.  (Mass.) 
573  (1853) ;  Loomis  v.  Foster,  1  Mich.  1G6  (1848) ;  Snook  v.  Davis,  6  Mich. 
156  (1858);  Bennett  v.  Holloway,  55  Miss.  211  (1877);  Gibson  v.  Mozier,  9  Mo. 
256  (1845)  semble ;   Parham  v.  Riley,  4  Cold.  (Tenn.)  5,  9  (1867)  semble. 

Apparently  in  general,  matters  in  excuse  are  admissible  under  it  Bennett 
V.  Holloway,  55  Miss.  211  (1877) ;  Gibson  v.  Mozier,  9  Mo.  256  (1845)  semble. 

2  7  Statement  of  facts  and  part  of  opinion  omitted. 


Ch.  5)  REPLEVIN  237 

first  day  of  May  following,  and  upon  his  failure  to  pay  at  that  time, 
the  cattle  were  to  be  sold  under  the  distress.  Evidence  was  also  of- 
fered to  show  that  the  plaintiff  was  not  a  bona  fide  purchaser  without 
notice. 

There  can  be  no  difficulty,  we  think,  in  regard  to  the  well  settled 
principles  by  which  the  several  questions  presented  by  the  record  are 
to  be  determined.  At  common  law  the  landlord  had  no  right  to  sell 
property  taken  under  a  distress,  but  was  obliged  to  keep  the  same 
as  a  pledge  until  it  was  redeemed  by  the  tenant.  The  power  to  sell 
was  first  conferred  by  Statute  2  William  &  Mary,  and  under  its  pro- 
visions, distress  soon  became  a  speedy  and  efficient  remedy  for  the  col- 
lection of  rent.  The  statute  provided  that  unless  the  tenant  or  owner 
replevied  the  property  within  five  days  after  the  distress  and  notice 
thereof,  the  person  distraining  was  authorized  to  have  the  distress  ap- 
praised, and  after  such  appraisement  to  sell  the  same  towards  the 
satisfaction  of  the  rent  and  expenses  incident  to  the  distress. 

Now  in  this  case  the  property  was  left  in  the  possession  of  the 
tenant  unsold  at  his  request,  and.  upon  his  agreement  to  pay  the  rent 
on  or  before  a  day  nan^.ed,  and  as  between  him  and  the  landlord,  it 
remained  subject  to  the  lien  acquired  under  the  distress.  If,  however, 
the  landlord  permitted  the  cattle  to  remain  in  the  possession  of  Ben- 
jamin Worthington,  the  tenant,  for  an  unreasonable  length  of  time, 
without  making  a  sale  under  the  distress,  namely,  from  the  26th  of 
January  to  the  first  day  of  May  following,  and  they  were  then  driven 
by  the  tenant  from  the  farm  occupied  by  him  to  the  farm  of  the  ap- 
pellee, and  were  there  purchased  by  him,  without  notice  of  the  dis- 
tress, we  are  of  opinion  that  "the  landlord's  lien  cannot  be  enforced 
to  the  prejudice  of  the  rights  of  the  appellee  as  a  bona  fide  purchaser. 

On  the  other  hand  if  the  cattle  were  not  sold  to  the  appellee,  but 
merely  left  in  his  possession  by  the  tenant,  they  still  remained  subject 
to  the  lien  acquired  by  the  landlord  under  the  distress.  The  main 
question,  therefore,  in  this  case,  is,  whether  the  appellee  was  a  bona 
fide   purchaser  without  notice. 

There  was  no  error  however,  in  the  refusal  of  the  defendant's  first 
and  second  prayers.  Replevin  may  be  maintained  in  this  State,  not 
only  for  the  unlawful  taking  but  also  for  the  unlawful  detention  of 
property. 

And  although  the  cattle  may  have  been  taken  from  the  possession 
of  the  appellee  by  a  constable  of  Carroll  County,  or  by  other  persons 
and  delivered  to  the  possession  of  the  appellant,  yet,  if  the  latter 
refused  to  deliver  them  to  one  who  was  entitled  to  the  immediate 
right  of  possession,  an  action  of  replevin  would  lie.     *     *     * 

The  thirteenth  prayer  ^^  was  erroneous,  because  it  did  hot  submit 

28  The  thirteenth  instruction  prayed  by  the  defendant  and  refused  by  the 
lower  court  told  the  jury  in  substance  that  if  they  found  that  the  lease  to 
B.  Worthington  by  B.  I.  Worthington  was  made,  that  rent  was  due,  that  B. 
I.  Worthington  distrained  the  cattle,  that  the  cattle  were  left  with  B.  Worth- 


238  PLlSADfNGS   IN   TORT  ACTIONS  (Part    1 

to  the  jury  to  find  whether  the  appellee  was  a  bona  fide  purchaser 
without  notice.  With  this  qualification  it  presents  correctly  the  law 
governing  and  controlling  the  case.     *     *     * 

It  is  argued  in  the  brief  of  the  appellee,  that  the  appellant's  thir- 
teenth prayer  was  properly  refused,  because  the  defendant  had  no 
right  to  set  up  the  distress  of  the  landlord  either  by  way  of  plea  or 
in  evidence. 

Now  in  an  action  of  replevin  in  this  State,  the  plaintiff  must  show 
that  he  is  entitled  to  the  right  of  possession.  The  defendant  may  plead 
non  cepit,  property  in  himself,  or  in  a  stranger,  inconsistent  though 
these  pleas  may  seem.  Edelen  v.  Thompson,  2  Har.  &  G.  31.  The 
plaintiff's  replication  to  these  pleas  must  set  up  property  in  himself, 
and  on  this  the  issue  is  joined.  Cullum  v.  Bevans,  6  Har.  &  J.  469 ; 
Warfield  v.  Walter,  11  Gill  &  J.  80.  And  where  the  defendant 
pleads  property  in  a  third  person,  the  burden  of  proof  is  upon  the 
plaintiff  to  show  a  superior  title  to  that  third  person.  McKinzie 
V.  B.  &  O.  R.  R.  Co.,  28  Md.  161.  Upon  these  pleas  of  property  the 
defendant  if  he  succeeds,  is  entitled  to  a  return  of  the  property 
without  making  avowry  or  cognizance,  because  they  destroy  the  plain- 
tiff's title.  Crosse  v.  Bilson,  6  Modern,  102;  Butcher  v.  Porter,  1 
Salkeld,  94 ;   Alexander's  British  Statutes,  99. 

The  defendant  having  set  up  title  in  Benjamin  I.  Worthington 
by  his  third  plea,  it  was  competent  for  him  to  sustain  the  plea,  or 
in  fact  to  meet  the  issue  presented  by  the  replication  of  the  plaintiff, 
by  proving  how  and  in  what  manner  Worthington  acquired  title  to 
the  property.     *     *     * 

Judgment  reversed,  and  new  trial  awarded.^' 


QUINCY  V.  HALL. 

(Supreme  Court  of  Massachusetts,  1823.     1  Pick.  357,  11  Am.  Dec.  198.) 

William  A.  Quincy  replevied  goods  which  had  been  taken  by  a 
deputy  of  the  defendant,  sheriff  of  this  county,  by  virtue  of  writs  of 
attachment  in  favor  of  one  Williams  and  others  a:gainst  A.  H.  Quincy. 

ington  subject  to  the  distress  and  under  B.  Worthington's  agreement  to  pay 
the  rent  by  a  day  stated,  that  B.  Worthington  fraudulently  removed  the  cat- 
tle from  the  farm  to  another  county,  that  the  bailifC  found  the  cattle  in  the 
possession  of  the  plaintiff  and  took  them,  that  the  bailiff  delivered  them  to 
the  defendant,  an  innkeeper,  for  safe-keeping,  and  that  they  vpere  at  the  inn 
when  the  replevin  issued,  then  the  plaintiff  cannot  recover. 

29  Anderson  v.  Dunn,  19  Ark.  650,  655  (1858 :  statute  of  limitations) ;  At- 
kins V.  Byrnes,  71  111.  326  (1874) ;  Pope  v.  Jackson,  65  Me.  162  (1876)  semble ; 
Whitcher  v.  Shattuck,  3  Allen  (Mass.)  319  (1862)  ;  Boswell  v.  Green,  25  N.  J. 
Law,  390  (1856) ;  Halstead  v.  Cooper,  12  R.  I.  500  (1880).  Accord.  Smith  v. 
Williamson,  1  Har.  &  J.  (Md.)  147  (1801 :   statute  of  limitations).  Contra. 

The  denial  of  plaintiff's  title  may  be  in  general  terms.  Dermott  v.  Wal- 
lach,  1  Black.  96,  17  L.  Ed.  50  (1861 :   District  of  Columbia  law). 


Ch.  5)  REPLEVIN  239 

The  defendant  pleaded  in  bar,  that  the  property  was  in  A.  H. 
Quincy,  without  that,  that  the  property  was  in  the  plaintiff;  and  upon 
this  traverse  issue  was  joined. 

On  the  trial,  before  Parker,  C.  J.,  the  plaintiff  produced  in  evidence 
bills  of  sale  of  the  goods  from  A.  H.  Quincy,  dated  on  the  24:th  of 
June,  1822,  which  was  receipted  as  paid,  and  for  which  the  plaintiff 
gave  his  promissory  notes,  payable  on  demand,  without  any  indorser 
or  other  security.  The  Chief  Justice  having  expressed  an  opinion  that 
the  sale  would  be  found  fraudulent  as  against  creditors,  it  was  ad- 
mitted that  the  intention  was  to  constitute  the  plaintiff  trustee  for  the 
creditors  of  A.  H.  Quincy,  for  the  purpose  of  making  an  equitable 
adjustment  among  all  the  creditors.  It  was  proved  that  there  had  been 
several  meetings  of  the  creditors,  at  which  it  was  known  that  the  goods 
were  disposed  of  in  the  manner  and  for  the  purpose  above  mentioned, 
and  it  was  proposed  to  them  that  the  plaintiff  should  give  security  and 
proceed  to  sell  the  goods  and  pay  the  creditors  the  amount  of  his 
notes,  but  he  was  willing  to  give  up  the  goods  and  take  back  his  n-^tes, 
upon  receiving  200  dollars  for  his  trouble.  A  committee  of  the  cred- 
itors was  chosen,  on  the  26th  of  June,  to  look  into  the  affairs  of  A. 
H.  Quincy,  and  they  made  a  report  on  the  27th,  which  was  shown  to 
the  principal  creditors  and  was  approved  of,  or  acquiesced  in,  by  all 
but  those  who  attached.  It  did  not  appear  that  either  Downer  or 
Baldwin,  who  were  attaching  creditors,  were  present  at  any  of  the 
meetings  of  the  creditors.  The  plaintiff  was  in  possession  of  the 
property,  under  the  bill  of  sale,  from  the  24:th  of  June  till  the  2d  of 
August,  when  it  was  attached. 

The  Chief  Justice  directed  a  nonsuit,  with  liberty  to  move  to  have 
it  taken  off  and  to  have  a  new  trial,  if  an  assignment  for  the  purpose 
and  in  the  form  above  stated,  is  good  in  law. 

Parker,  C.  J.^°  It  is  objected  first,  that  under  the  issue  joined  the 
defendant  ought  not  to  have  been  allowed  to  give  evidence  which  he 
might  have  given  in  case  he  had  set  forth  his  title  in  an  avowry;  and 
that  he  could  not  contest  the  conveyance  to  the  plaintiff  on  the  ground 
of  fraud,  because  it  did  not  appear  in  the  pleadings  that  he  was  a 
creditor,  or  that  in  virtue  of  his  office  he  was  acting  for  creditors. 
The  pleadings  are  conformable  to  the  practice  in  this  State  for  the 
last  thirty  years,  in  cases  v^here  replevins  have  been  prosecuted  against 
officers,  who  had  made  an  attachment  of  the  goods  replevied.  Before 
that  time,  it  is  believed  that  the  practice  of  setting  forth  a  special  title 
to  the  possession  of  the  goods,  in  the  form  of  an  avowry,  was  more 
prevalent.  As  the  present  practice  is  convenient,  and  deprives  the 
plaintiff  in  replevin  of  no  advantage,  he  being  always  presumed  to 
know,  where  he  sues  his  replevin  against  an  iDfficer,  that  the  goods 
are  attached,  we  should  hesitate  much  before  we  overruled  it,  ev^n 

80  Part  of  the  opinion  omitted. 


240  PLEADINGS   IN   TORT  ACTIONS  (Part    1 

if  we  could  not  trace  it  to  any  strictly  legal  source.  But  we  are  with 
out  doubt  that  the  practice  is  well  founded  in  law,  and  is  strictly  con- 
formable to  the  principles  of  good  pleading  in  actions  of  replevin. 

By  the  common  law,  property  in  a  stranger  may  be  pleaded  in  bait 
or  abatement;  and  the  reason  is,  that  the  object  of  the  writ  is  to  give 
the  possession  of  the  chattels  to  him  who  claims  to  have  the  right ; 
if  he  fail  to  make  out  his  title,  the  possession  ought  to  be  restored 
to  him  from  whom  by  process  of  law  it  was  taken;  and  it  is  wholly 
immaterial  whether  the  defendant  has  any  title  or  not,  provided  the 
plaintiff  has  none;  for  the  defendant  is  entitled  to  the  possession, 
being  answerable  for  the  chattel  to  the  true  owner.  Nor  is  it  neces- 
sary there  should  be  an  avowry,  in  order  that  there  may  be  a  judg- 
ment for  return ;  for  if  it  appears  that  the  property  is  not  in  the  plain- 
tiff, the  law  will  restore  the  chattel  to  him  who  had  the  possession.^ ^ 

When  the  writ  is  abated  for  some  matter  of  form,  it  has  been  held 
that  there  shall  be  no  judgment  of  return,  unless  there  is  on  the  record 
a  suggestion  of  the  defendant's  right  and  a  prayer  for  a  return ;  this 
is  because,  though  the  writ  may  fail  on  account  of  form,  the  right 
may  nevertheless  be  in  the  plaintiff ;  and  the  court  will  have  some  suf- 
ficient reason  on  record  for  a  change  of  the  possession  again  before 
they  will  order  it.  But  in  case  of  a  plea  in  abatement,  that  the  prop- 
erty is  in  a  stranger,  a  return  will  be  awarded  without  any  avowry  or 
suggestion,  because  the  finding  the  issue  against  the  plaintiff  proves 
that  he  had  no  right  to  disturb  the  possession  of  the  defendant.  Sal- 
keld  V.  Skelton,  Cro.  Jac.  519.  See  Presgrave  v.  Saunders,  1  Salk. 
5,  (S.  C.  Ld.  Raym.  984,)  to  the  same  point;  in  which  the  court  say, 
in  answer  to  the  objection  that  property  in  a  stranger  can  be  pleaded 
only  in  abatement,  "It  has  been  adjudged  otherwise,  and  the  law  is 

SI  Butcher  v.  Porter,  1  Salk.  94  (1692);  Simmons  v.  Jenkins,  76  111.  479 
(1875);  Lamotte  v.  Wisner.  51  Md.  543,  561  (1879)  semble;  Bemus  v.  Beek- 
man,  3  Wend.  (N.  Y.)  6GS,  673  (1829)  semble.  Accord. 

It  is  not  necessary  to  pray  a  return.  Fleet  v.  Lockwood,  17  Conn.  233,  2.3S 
(184.J :  statutory,  but  semble  as  to  common  law) ;  King  v.  Ramsay,  13  111. 
619,  623  (1852)  semble ;  McArthur  v.  Lane,  15  Me.  245  (1839) ;  Lowe  v.  Brig- 
ham,  3  Allen  (Mass.)  429  (1862). 

The  mere  fact  that  the  defendant  obtains  a  verdict  on  non  cepit  does  not 
warrant  a  return.  Hopkins  v.  Burney,  2  Fla.  42  (1848) ;  Bourk  v.  Riggs, 
38  111.  320  (1865) ;  Simpson  v.  McFarland,  18  Pick.  (Mass.)  427,  29  Am.  Dec. 
602  (1836);  People  v.  Niagara,  4  Wend.  (N.  Y.)  217  (1830).  But  If  a  plea 
denies  both  the  defendant's  wrongful  act  and  the  plaintiff's  title  a  return  may 
be  awarded.  D'Arcy  v.  Steuer,  179  Mass.  40,  60  N.  E.  405  (1901).  When  non 
detinet  does  not  put  title  in  issue  a  return  is  improper.  Bourk  v.  Riggs,  38 
III.  320  (1865) ;    Dyer  v.  Brown,  71  111.  App.  317  (1897). 

If  defendant  wins  on  an  avowry  which  admits  title  in  plaintiff  but  shows 
a  right  in  defendant  to  take  the  possession  he  is  entitled  to  a  return.  Larkin 
V.  Wilburn,  2  Blackf.  (Ind.)  343  (1830:    distress  for  rent). 

The  granting  of  a  return  or  its  refusal  depends  on  the  right  of  the  de- 
fendant to  have  possession  of  the  property  as  against  the  plaintiff  at  tne  time 
of  the  rendering  of  judgment.  Simpson  v.  McFarland,  18  Pick.  (Mass.)  427, 
432,  29  Am.  Dec.  602  (1836) ;  Whitwell  v.  Wells,  24  Pick.  (Mass.)  25,  33  (1S34) ; 
Russell  V.  Butterfield,  21  Wend.  (N.  Y.)  300.  304  (1839). 


Ch.  5)  REPLEVIN  241 

otherwise,  for  it  utterly  destroys  the  plaintiff's  action ;  and  whether 
a  defendant  or  a  stranger  have  the  property,  it  is  all  one  to  the  plain- 
tiff, since  he  has  it  not."  The  form  of  pleading,  therefore,  is  correct, 
and  it  has  been  adopted  instead  of  the  old  mode  of  pleading  by  avowry, 
on  account  of  its  simplicity  and  convenience. 

It  has  been  sometimes  the  practice  for  the  defendant  to  suggest  on 
the  record  the  facts  which  entitle  him  to  possession,  that  he  may  have 
a  return ;  but  this  cannot  be  necessary  where  the  property  is  found 
against  the  plaintiff,  as  the  above  cited  cases  show.  In  Gould  v.  Bar- 
nard, 3  Mass.  199,  where  a  writ  of  replevin  was  abated  because  it 
was  not  indorsed,  the  Court  refused  to  award  a  return,  because  there 
was  no  avowry  or  suggestion ;  but  this  must  have  been  because  the 
writ  failed  in  a  point  of  form,  and  the  defendant  being  unable  to  show 
any  right,  the  Court  would  not  change  the  actual  possession.  In  a  case 
like  the  present,  where  there  is  a  nonsuit  upon  the  merits,  the  effect 
must  be  the  same  as  if  the  plaintiff  had  demurred  to  the  plea  in  bar, 
or  there  had  been  a  verdict  against  the  plaintiff  upon  the  issue;  in 
both  which  cases,  as  it  would  legally  appear  that  the  plaintiff  had  no 
property,  a  return  would  be  awarded. 

The  question  then  is,  whether  the  defendant  was  properly  let  in  to 
contest  the  property  of  the  plaintiff  on  the  ground  that  the  convey- 
ance was  fraudulent,  it  not  appearing  on  the  record  that  he  was  a 
creditor,  or  that  he  had  a  lawful  right  to  act  for  a  creditor;  or  in 
other  words,  whether  it  was  necessary  for  an  attaching  officer  to  set 
forth  his  authority  in  an  avowry,  in  order  to  be  entitled  to  a  defence, 
when  the  property  attached  has  been  taken  out  of  his  hands  by  re- 
plevin. 

Here  again  the  practice  has  been  general  for  many  years.  It  is 
much  more  usual  to  try  the  validity  of  conveyances  under  the  issue 
of  property  in  the  plaintiff,  than  in  the  more  complex  way  of  avowry. 
The  latter  is  seldom  resorted  to,  unless  it  be  to  gain  some  advantage 
in  pleading;  and  there  is  no  necessity  for  it;  for  the  plaintiff  under- 
takes to  prove  the  chattels  taken  to  be  his  property,  and  must  be  sup- 
posed to  come  prepared  to  maintain  it  against  creditors  as  well  as 
others.  If  he  has  taken  a  conveyance  to  defeat  creditors,  he  cannot 
be  surprised  with  evidence  tending  to  show  the  fact;  and  the  state- 
ment of  the  defendant's  official  right  in  a  plea  cannot  be  necessary 
to  enable  him  to  be  ready  to  maintain  his  property.  When  he  proves 
a  conveyance  from  the  debtor,  the  party  contending  with  him  may 
well  show  in  evidence  his  right  to  contest  it.  If  he  had  brought  tres- 
pass instead  of  replevin,  it  has  never  been  disputed  that,  on  the  gen- 
eral issue,  a  defendant  may,  by  showing  that  he  is  a  creditor,  be  let 
in  to  contest  his  title  on  the  ground  of  fraud ;  ihis  is  done  every  day, 
and  there  is  no  reason  for  a  different  rule  in  replevin.  Indeed,  there 
seems  to  be  no  reason  why  a  sheriff,  if  he  is  sued,  may  not  plead 
Whit.C.L.Pl.— 16 


242  PLEADINGS  IN  TORT  ACTIONS  (Part    1 

property  in  himself,  and  prove  it  by  showing  his  special  property  under 
an  attachment.     *     *     * 

Motion  to  take  off  the  nonsuit  overruled,  and  judgment  for  a  re- 
turn.^ ^ 


PAUL  V.  LUTTRELU 

(Supreme  Court  of  Colorado,   1871.     1  Colo.  317.) 

Replevin  for  a  portable  saw  mill.  The  evidence  tended  to  show 
that  the  plaintiff  had  possession,  that  the  property  was  sold  under  an 
execution  against  the  Union  Mill  Company  and  that  the  defendant 
became  the  purchaser.  There  was  no  evidence  of  any  possession  by 
the  defendant  unless  it  be  assumed  that  when  he  bought  the  goods 
they  were  delivered  to  him  by  the  officer  conducting  the  sale. 

WeIvLS,  J.^^  The  defendant  in  error  brought  replevin  against 
plaintiff  in  error,  and  declared  in  the  cepit;  defendant  in  the  court 
below  pleaded  non  dctinet  and  property  in  himself;  issue  was  jouied 
upon  these  pleas,  and  the  cause  was  submitted  to  a  jury,  who  found 
for  the  plaintiff  below  upon  both  issues.  Upon  the  trial,  the  evidence 
offered  by  the  defendant  in  support  of  his  plea  of  property  was  ex- 
cluded, and  we  think  properly ;  there  was  also  evidence  of  a  posses- 
sion by  the  plaintiff  of  the  goods  in  controversy  at  some  time  prior 
to  the  bringing  of  his  action;  the  finding  of  the  jury  upon  the  second 
issue  is  therefore  supported  by  the  evidence. 

But  we  think  there  is  no  evidence  to  support  the  finding  upon  the 
plea  of  non  detinet. 

All  of  the  evidence  which  can,  in  any  way,  be  applied  to  this  issue 
is  entirely  consistent  with  the  supposition,  that  the  defendant  derived 
possession  of  the  goods  in  controversy  (if  indeed  he  ever  had  posses- 
sion of  them)  by  a  delivery;  there  was  no  evidence  given  of  a  taking 
by  the  defendant,  or  of  a  demand  and  refusal  to  surrender  them,  or 
of  equivalent  circumstances. 

The  question  is,  therefore,  presented,  whether  in  this  form  of  action 
the  plea  of  non  detinet  presents  a  material  issue. 

In  this  territory  replevin  lies  "whenever  any  goods  or  chattels  have 
been  wrongfully  distrained  or  otherwise  wrongfully  taken,  or  shall 
be  wrongfully  detained."  According  therefore  as  the  plaintiff  declares 
in  the  cepit  or  in  the  detinet,  either  the  taking  or  the  detention  is  the 

32  Gates  V.  Gates,  15  Mass.  310  (1818:  replevin  for  taking) ;  Snook  v.  Davis, 
G  Mich.  156  (IS-jS  :  doubtful  whether  for  taking  or  detention) ;  Craig  v.  Grant, 
6  Mich.  447,  455  (1859 :  detention) ;  Oaks  v.  Wyatt,  10  Ohio,  344  (1840 :  de- 
tention). Accord.  In  Carroll  v.  Harris,  IQ  Ark.  237  (1857:  taking  and  deten- 
tion), it  was  held  that  the  defense  was  inadinissible  under  non  cepit  and  it 
was  said  that  it  must  be  pleaded  specially. 

3  3  This  short  statement  is  substituted  for  that  in  the  report  and  part  of 
the  opinion  is  omitted. 


Ch.  5)  REPLEVIN  243 

gist  of  the  action ;  but  we  think  that  the  plaintiff  must  establish  a  de- 
tention in  either  case,  if  put  in  issue,  for  the  words  of  the  statute 
above  quoted  are  manifestly  qualified  by  other  words  which  follow 
in  the  same  section,  whereby  it  is  provided  that,  in  the  cases  before 
therein  specified,  "an  action  of  replevin  may  be  brought  for  the  re- 
covery of  such  goods  and  chattels."  That  is  to  say,  the  action  of 
replevin  in  either  form  lies,  as  at  common  law,  only  for  the  recovery 
of  goods  in  specie;  and  a  mere  unlawful  taking,  not  followed  by  a 
detention,  will  not  suffice  to  maintain  it.  It  follows,  therefore,  that 
the  detention  of  the  goods  is  a  material  fact  necessary  in  either  form 
of  the  action  to  maintain  the  plaintiff's  case,  and  may  always  be  put 
in  issue,  either  by  the  plea  of  non  detinet,  or  perhaps  by  the  plea  of 
non  cepit,  where  the  plaintiff  declares  in  the  cepit,  per  Rogers,  J.,  in 
MacKinley  v.  McGregor,  3  Whart.  398,  31  Am.  Dec.  522,  or  we  think 
by  special  plea,  and  when  so  put  in  issue  the  plaintiff  may  maintain 
the  affirmative  by  a  mere  proof  of  the  taking,  from  which  the  law 
presumes  that  the  goods  continue  in  the  defendant's  possession,  and 
that  the  defendant  remains  of  the, purpose  in  which  he  committed  the 
wrong,  and  intends  to  retain  them,  or  by  proof  of  demand  and  re- 
fusal before  action  brought,  or  by  proof  of  other  circumstances  war- 
ranting the  inference  that  a  demand  would  have  been  unavailing. 
Johnson  v.  Howe,  2  Oilman  (111.)  342. 

The  defendant,  on  the  other  hand,  may  maintain  the  negative  of  the 
issue  by  showing,  if  he  can,  that,  before  suit  brought,  he  restored 
the  goods  to  the  plaintiff's  possession,  or  that  the  goods  were  before 
action  brought  destroyed  by  the  act  of  God,  or  possibly  by  his  own 
act,  for  it  cannot  well  be  said  that  one  unlawfully  detains  that  which 
is  not  in  being.     *     *     * 

Reversed.^* 


SIMCOKE  v.  FREDERICK  et  al. 
(Supreme  Court  of  Indiana,  1848.    1  Ind.  54.) 

Error  to  the  Whitley  Circuit  Court. 

Perkins,  J.^^  Replevin  against  the  sheriff  of  Whitley  county. 
*     *     * 

The  defendant  pleaded,  1.  Property  in  one  Job  G.  Vandewater, 
absque  hoc,  that  the  goods  were  the  property  of  the  plaintiffs;  and  2. 
He  avowed  the  taking  of  the  goods  by  virtue  of  a  writ  of  execution 

«*  This  defense  is  admissible  under  non  cepit.  MacKinley  v.  McGregor,  3 
Whart.  (Pa.)  3G9,  39S.  31  Am.  Dec.  522  (1S38 :    not  clear)  semble. 

In  Braddock  Co.  v.  Pfaudler  Co.,  106  Fed.  604.  .45  C.  C.  A.  '491  (1901: 
Pennsylvania  law),  it  was  held  that  the  fact  that  the  alleged  goods  were 
part  of  certain  realty  was  inadmissible  under  a  plea  denying  plaintiff's  ti- 
tle. 

8  5  Part  of  the  opinion  omitted. 


244  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

called  a  fi.  fa.  In  favor  of  one  Benjamin  Gardner  against  said  Job  G. 
Vandewater,  whose  goods  he  averred  those  in  controversy  were.  A 
motion  was  made  to  reject  this,  so  called,  avowry,  which  was  over- 
ruled. It  should  have  been  sustained.  This  nominal  avowry  amounted 
to  nothing  more  than  a  plea  of  property  in  Job  G.  Vandewater,  and, 
as  there  had  already  been  a  plea  to  that  effect  pleaded,  the  one  in  ques- 
tion should  have  been  rejected  on  motion.  Mann  v.  Perkins,  4  Blackf. 
271.  Whether  this  avowry  was  substantially  defective  as  a  plea  of 
property  in  a  stranger  for  want  of  a  traverse  of  property  in  the  plain- 
tiffs, we  shall  not  now  inquire.  See  Prosser  v.  Woodward,  21  Wend. 
(N.  Y.)  205;  Walpole  v.  Smith,  4  Blackf.  304.  The  office  of  an 
avowry  is,  not  to  deny  property  in  the  plaintiff,  but  to  set  up  some 
legal  right  in  the  defendant  to  take  the  property  in  dispute  without 
regard  to  its  ownership,  as,  that  it  was  subject  to  distress  for  rent, 
damage  feasant,  &c.  The  pretended  avowry,  in  this  case  makes  no 
attempt  to  show  such  a  right,  and,  as  we  have  said,  amounts,  at  best, 
to  nothing  more  than  a  plea  of  property  in  a  stranger.  Mann  v. 
Perkins,  supra ;  Martin  v.  Ray,  1  Blackf.  291 ;  Harris  v.  McFaddin, 
2  Blackf.  71;  Wright  v.  Matthews,  2  Blackf.  187;  Larkin  v.  Wil- 
burn,  2  Blackf.  343 ;   Given  v.  Blann,  3  Blackf.  64.     *     *     * 

PilR  Curiam.     The  judgment  is  reversed — cause  remanded,  &c.^' 


ENGLISH  V.  BURNELL  &  INGHAM. 

(Court  of  Common  Bench,   1765.     2  Wils.  258.) 

Replevin  for  taking  plaintiff's  cattle;  avowry  that  Burnell  was 
seised  in  fee  and  in  possession  of  a  certain  ancient  messuage,  and  that 
Ingham  was  tenant  and  occupier  of  another  ancient  messuage,  and 
that  Burnell  as  owner  and  occupier  of  the  messuage  then  in  his  pos- 
session, and  Ingham  as  owner  and  occupier  of  the  messuage  then  in 
his  possession,  and  all  other  occupiers  of  the  said  messuages  have  had 
time  out  of  mind,  and  of  right  ought  to  have  common  of  pasture  in 
the  locus  in  quo,  &c.  and  avow  they  took  the  cattle  damage  feasant; 
the  plaintiff  pleads  in  bar,  and  traverses  the  right  of  common,  and 
thereupon  issue  is  joined,  and  a  verdict  was  found  for  the  defendants. 

Serjeant  Nares,  for  the  plaintiff",  moved  in  arrest  of  judgment,  and 
objected  that  the  avowry  is  ill,  the  prescription  of  right  of  common 
being  confined  to  the  occupiers  of  the  .messuages,  who  have  but  a 
mere  temporary,  and  not  a  permanent  interest  therein.     *     *     * 

Burland,  Serjeant,  contra — In  this  avowry,  one  of  the  defendants 
avows  as  owner  and  occupier  of  a  tenement,  and  the  other  as  occupier, 
the  issues  are  found  for  the  defendants ;  the  plaintiff  did  not  take 
advantage  by  demurring,  as  he  might  have  done,  therefore  he  is  not 

8  6  Ball  V.  Penn,  10  Pa.  Super.  Ct.  544,  547  (1899)  semble.  Accord. 


Ch.  5)  EEPLBVIN  245 

entitled  to  favour.  Admitting  the  argument  on  the  other  side,  we 
have  sufficiently  set  forth  a  title  in  the  avowants ;  where  the  plaintiff 
complains  of  an  injury  done  to  his  soil,  there  the  defendant,  in  his 
justification,  must  prescribe  in  a  que  estate,  because  the  plaintiff  com- 
plains of  an  injury  done  to  his  soil,  but  in  trespass  for  taking  goods, 
it  is  sufficient  for  the  defendant  to  say,  that  he  was  possessed  of  the 
locus  in  quo,  and  the  goods  were  damage  feasant ;  so  for  taking  cattle, 
a  justification  that  the  defendant  was  possessed  of  a  close  and  entitled 
to  common,  and  took  the  cattle  damage  feasant  is  good,  and  there  is 
no  difference  between  a  replevin  and  trespass  for  taking  cattle  only; 
for  replevin  is  only  an  action  for  taking  the  cattle.  In  easements,  &c. 
it  is  sufficient  to  declare  upon  the  possession.  If  an  avowry  shews 
the  locus  in  quo  belongs  to  the  plaintiff,  it  must  set  forth  a  que  estate, 
otherwise  it  need  not;  and  though  an  avowry  is  informal,  it  is  cured 
by  verdict,  our  title  is  only  defective  in  the  setting  forth,  and  so  is 
cured,  as  in  Cro.  Eliz.  445. 

Hewitt,  Serjeant,  of  the  same  side  with  the  defendant — There  are 
two  questions,  1.  Whether  the  avowry  be  good.  2.  Whether  it  be 
aided  by  the  statute  after  verdict.  Here  the  injury  complained  of, 
is  only  for  taking  the  plaintiff's  cattle,  no  right  to  the  close  is  set 
forth;  against  a  wrongdoer  it  is  sufficient  to  set  forth  a  possession, 
as  in  the  case  of  a  way,  common,  &c. ;  so  in  all  declarations,  and  an 
avowry  is  in  the  nature  of  a  declaration.  2  Ld.  Raym.  923.  In  ac- 
tions against  wrongdoers,  it  is  enough  to  shew  possession.^^ 

Lord  Chief  Justice.  Have  you  any  case  to  shew  that  an  avowry 
is  considered  as  a  declaration?    Do  you  argue  only  on  principle? 

Hewitt,  Serjeant — Only  on  principle.  Distress  is  the  first  process 
in  this  replevin,  and  the  avowry  is  the  declaration.  11  Mod.  219,  Har- 
rington V.  Bush;  Stat.  32  H.  8,  c.  30.  Here  the  true  gist  of  the 
action  has  been  tried,  and  it  appears  the  plaintiff  has  been  a  wrong- 
doer.    Brown  v.  Bookill,  Skin.  115,  213.     *     *     * 

Nares,  Serjeant,  in  reply — It  seems  to  be  admitted  by  the  last  case 
cited  by  my  brother,  that  possession  is  not  sufficient  in  an  avowry. 
I  admit  that  in  trespass  for  taking  cattle  possession  is  a  good  plea, 
but  in  replevin  it  is  otherwise,  for  there  the  avowant  must  shew  a 
title  in  fee,  or  derive  his  title  from  him  who  has  the  fee,  to  entitle 
him  to  have  a  return  of  the  cattle;  and  the  Stat.  11  Geo.  2,  c.  19, 
was  made  to  excuse  the  avowant  from  shewing  his  title  in  an  avowry 
for  a  distress  for  rent.  2  Stra.  847.  Though  in  the  case  of  easements 
you  may  declare  upon  the  possession,  yet  you  must  prove  a  prescrip- 
tive right  at  the  trial.  After  a  trial,  the  court  will  only  presume  every 
thing  was  proved  to  make  good  the  title  pleaded,  but  not  to  make  a 
good  title. 

Chief  Justice.  Is  there  any  case  to  shew  that  possession  is  suf- 
ficient in  an  avowry?    The  court  took  time  to  consider  till  the  latter 

3  7  Part  of  the  arguments  of  counsel  omitted. 


246  PLEADINGS   IN  TORT  ACTIONS  (Part    1 

end  of  the  term,  when  the  Lord  Chief  Justice  delivered  the  opinion 
of  the  court. 

Lord  Chief  Justice.  It  is  objected  that  the  right  of  common  is 
laid  in  the  occupiers  only.  The  defendant's  counsel  did  not  pretend 
it  would  be  good  where  it  is  necessary  to  set  forth  a  title;  for  it  is 
now  settled  law,  and  the  reason  in  Gateward's  Case  [6  Rep.  60a]  is 
convincing.  The  answer  given  is,  that  in  trespass  there  is  no  occasion 
to  set  forth  a  title  against  a  stranger,  but  the  defendant's  counsel  pro- 
duced no  case  to  shew  that  replevin  is  similar  to  trespass. 

In  replevin  the  avowant  must  justify,  and  shew  by  what  authority 
he  distrains;  the  power  of  distress  is  an  extraordinary  power,  and 
almost  the  only  case  wherein  a  party  is  his  own  carver.  There  are 
many  cases  directly  in  point.  Yelv.  148.  There  is  a  great  difference 
between  replevin  and  trespass,  because  the  avowant  being  to  have  a 
return  of  the  cattle  must  shew  a  title  in  omnibus;  otherwise  in  tres- 
pass, in  which  the  defendant  need  only  plead  an  excuse.  2  Lutw. 
1231,  the  avowant  must  alledge  what  estate  he  is  seised  of,  therefore 
this  avowry  is  bad;  the  question  is,  whether  the  verdict  will  cure  it? 
The  distinction  is  between  a  title  defectively  set  forth,  and  a  defective 
title;  where  a  title  is  defective,  the  statutes  of  jeofails  do  not  extend 
to  it,  and  the  jury  cannot  examine  into  what  was  not  set  forth ;  the 
statutes  therefore  cannot  aid  it,  and  per  totam  curiam,  the  judgment 
must  be  arrested.^ ^ 

38  Saunders  v.  Hussey.  2  Lutw.  1231  (1690) ;  Hawkins  v.  Etcles,  2  B.  & 
P.  359  (1801);  Hopkins  v.  Hopkins,  10  Johns.  (N.  Y.)  369  (1813).  Accord. 
Gipson  V.  Bump,  30  Vt.  175  (1858).  Contra. 

So  of  an  avowry  of  distress  for  rent.  Silly  v.  Dally,  1  Ld.  Ray.  331  (1697) ; 
Bain  v.  Clark,  10  Johns.  424  (1813).  But  in  several  jurisdictions  the  rule  in 
this  application  has  been  changed  by  statute.  Wright  v.  Mathews,  2  Blackf. 
187  (1828);  Hill  v.  Stocking,  6  Hill,  277  (1844);  Franciscus  v.  Reigart,  4 
Watts  (Pa.)  98,  116  (1835). 

In  Bliss  V.  Badger,  36  Vt.  338  (1863),  a  cognizance  set  up  title  In  a  third 
party  under  whom  the  defendant  acted.  It  was  held  that  a  general  allega- 
tion of  the  third  party's  title  was  sufficient. 


PART  II 
PLEADINGS  IN  CONTRACT  ACTIONS 


CHAPTER  I 
SPECIAL  AND  GENERAL  (INDEBITATUS)  ASSUMPSIT 


SECTION  1.— SCOPE  .OF  THESE  ACTIONS 


EOVEY  V.  CASTLEMAN. 

(Court,  of  King's  Bench,  169G.     Ld.  Raym.  69.) 

Indebitatus  assumpsit.  The  plaintiff  declares  that  there  was  an  agree- 
ment between  the  defendant  and  him,  that  if  the  duke  of  Savoy  made 
an  incursion  into  Dauphine  within  such  a  time,  that  then  the  plaintiff 
should  give  the  defendant  £  100.  And  if  the  duke  did  not  make  the 
incursion  into  Dauphine  within  the  time  limited,  that  then  the  defendant 
should  give  to  the  plaintiff  £  100.  which  agreement  was  reduced  into 
writing  and  signed  by  both  the  parties;  and  the  plaintiff'  avers,  that 
the  duke  of  Savoy  did  not  make  any  incursion  into  Dauphine  within 
the  time  limited;  by  which  the  defendant  became  indebted  to  the  plain- 
tiff in  £  100.  and  being  indebted  assumed  to  pay,  etc.  Upon  non  as- 
sumpsit pleaded,  verdict  for  the  plaintiff'.  And  now  Mr.  Northey 
moved  in  arrest  of  judgment,  that  there  was  not  any  consideration  to 
raise  a  debt,  for  no  debt  can  arise  between  the  plaintiff  and  defendant 
upon  the  incursion  of  the  duke.  For  it  is  but  a  wager,  for  which  in- 
debitatus assumpsit  will  not  lie,  because  there  wants  a  real  considera- 
tion. But  for  mutual  promises  assumpsit  may  lie,  but  not  indebitatus 
assumpsit.  For  indebitatus  assumpsit  will  lie  only  in  cases  where  debt 
will  lie,  but  in  this  case  debt  cannot  lie.  Quod  fuit  concessum  per 
totam  curiam.  And  therefore  judgment  was  given,  quod  querens  nil 
capiat  per  billam.^ 

1  Walker  v.  Walker,  5  Mod.  13  (1695) ;  Hard's  Case,  1  Salk.  23  (1702) 
semble;  Smith  v.  Airey,  2  Ld.  Raym.  1034  (1705).  Accord.  Eggleton  v. 
Lewin,  3  Lev.  118  (1683)  semble,  Contra. 

Whit.C.L.Pl.— 17  (247) 


248 


PLEADINGS  IN   CONTRACT  ACTIONS 


(Part  2 


MILLER  V.  WILBUR. 

(Supreme  Court  of  Vermont,  1903.     76  Vt.  73,  56  Atl.  280.) 

Exceptions  from  Windham  County  Court;   Tyler,  Judge. 

Action  by  Charles  C.  Miller  against  Lester  Wilbur.  Judgment  for 
plaintiff,  and  defendant  excepts.    Reversed. 

Stafford,  J.  Miller,  the  plaintiff,  sold  certain  goods  to  Luther  Wil- 
bur, taking  a  mortgage  back  to  secure  a  part  of  the  price.  Luther 
Wilbur  in  turn  sold  the  goods  to  Lester  Wilbur,  the  defendant,  subject 
to  the  mortgage ;  and  Lester  assumed  the  mortgage  debt  as  a  part  of 
the  price,  and  also  promised  the  plaintiff  directly  that  he  would  pay, 
in  consideration  of  which  the  plaintiff,  who  might  lawfully  have  taken 
possession  (there  being  no  stipulation  to  the  contrary  in  the  mortgage), 
forebore  to  do  so  for  a  time,  but  afterwards,  the  defendant  failing  to 
keep  his  promise,  foreclosed,  applied  the  proceeds,  and  brought  this 
action  for  the  balance.  The  declaration  is  the  common  counts  in  as- 
sumpsit, accompanied  by  a  specification  of  the  amount  of  the  mortgage 
notes,  less  the  proceeds  of  the  foreclosure  sale.  The  plea  is  the  general 
issue.  The  defendant  excepted  to  all  evidence  of  the  foregoing  facts 
upon  the  ground  that  it  was  not  admissible  under  the  pleadings,  and 
that  is  the  question  here. 

The  only  one  of  the  common  counts  which  could  possibly  be_app,ro- 
priate  is  that  which  declares  upon  a  promise  in  consideration  of^goods 
"sold  ancl  delivered  by  the  plaintilT^to"  the  detendant,  and  we  think  it 
'"TTCuM^ be^aTfretcTToflangiTage  and  of  reason  to  sayThat  the  pfarntilT's 
^forbearance  tojakejhe  goods  into  his  possession  rnTmtitnt£r1  ^  cgjp  ^pH 
""(leliveryr^The  plaintiff  did  sell  and  deliver  to  the  original  mortgagor, 
and  he  in  turn  sold  and  delivered  to  the  defendant.  There  was  never 
a  novation,  the  original  purchaser  was  not  released'  by  the  plaintiff,  and 
the  only  consideration  moving  from  the  plaintiff  to  the  defendant  was 
the  temporary  forbearance.^  It  was  suggested  that  the  case  falls  with- 
in  the  principle  that  when  a  special  contract  has  been  fully  executed  by 
the  plaintiff,  leaving  nothing  to  be  done  except  for  the  defendant  to 
pay  money,  general  assumpsit  may  be  maintained.  But  that  is  true 
___only  in  cages^  where  the  service  performed  under  the"  special  contragt 
would  raise  anTmplied  promise  if  there  were  no  special  "promise,  not  in 
cases  like  tBe  present  where  there  would  be  no  contract  TiabTTity  what_- 
evef,  except  for  the  special  promise.  Hersey  v.  Assurance  Co.,  75  Vt. 
~^l,  56  Atl.  95.  We  think,  therefore,  that  the  e'xception  must  be  sus- 
tained. 

Judgment  reversed,  and  cause  remanded.^ 

2  Forbearance  has  been  thought  to  be  a  sufficient  quid  pro  quo.     Bidwell 
V.  Catton,  Hob.  216  (1765);    Ames  v.  Le  Rue,  Fed.  Cas.  No.  327  (1840).     See, 
also.  Professor  Ames'  statement  in  8  H.  L.  Rev.  261. 
u«U^^*  3  CrifCord  v.   Berry,  11   Mod.  241   (1710).  Accord.     Ward   v.   Evans,    2   Ld. 


i 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)  ASSUMPSIT  249 

W.  F.  PARKER  &  SON  v.  CLEMON. 

(Supreme  Court  of  Vermont,  1908.    80  Vt.  521,  68  Atl.  646.) 

Appeal  from  Rutland  County  Court ;   Eleazer  L.  Waterman,  Judge. 

Assumpsit  by  W.  F.  Parker  &  Son  against  R.  N.  Clemon.  From  a 
judgment  for  plaintiffs,  defendant  appeals.     Reversed  and  remanded. 

Tyler,  J.  Assumpsit  with  common  counts.  Plea,  general  issue.  It 
appeared  by  an  agreed  statement  of  facts  that  the  defendant  was  man- 
ager of  a  telephone  company,  and  was  engaged,  with  an  assistant,  in 
wiring  a  business  block  in  Fair  Haven ;  that  while  so  engaged  the  as- 
sistant, in  the  defendant's  absence  from  the  room,  accidentally  over- 
turned a  jar  of  chemical  fluid;  that  the  fluid  ran  out,  leaked  through 
the  floor  into  the  plaintiff's  jewelry  store,  and  injured  various  articles 
therein.  The  defendant  was  not  employed  by  the  telephone  company, 
but  was  in  charge  of  the  work  at  the  request  of  the  son  of  the  owner 
of  the  block,  and  the  assistant  was  also  employed  by  him.  When  the 
plaintiff  discovered  the  injury  to  his  goods  he  sent  for  the  defendant, 
showed  them  to  him,  and  informed  him  that  part  of  them  would  have 
to  be  sent  away  to  be  repaired.  The  defendant  then  promised  the 
plaintiff  that  he  would  pay  him  the  amount  of  the  damage  when  he 
ascertained  what  it  was.  The  plaintiff  had  the  goods  repaired,  showed 
the  bill  therefor  to  the  defendant,  who  at  first  agreed  to  pay  it,  but 
afterwards  refused  to  pay  it  unless  the  owner  of  the  block  would  pay 
one-half,  which  the  latter  would  not  do. 

No  question  was  made  in  the  argument  other  than  whether  a  recov- 
ery could  be  had  under  any  of  the  common  counts.  It  is  clear  that  the 
"work  and  labor  performed"  upon  the  goods  were  for  the  plaintiff,  and 
not  for  the  defendant,  and  the  same  is  true  in  respect  to  "money  laid 
out  and  expended."  Indeed,  all  the  common  counts  are  founded  on  ex- 
press or  implied  promises  to  pay  money  in  consideration  of  antecedent 
debts. 

This  case  does  not  fall  within  either  of  the  first  three  divisions  made 
in  the  text-books — indebitatus  assumpsit,  quantum  meruit,  or  quantum 
valebat.  The  plaintiff  contends  that  the  count  for  an  account  stated 
will  lie ;  but  we  think  that  his  demand  does  not  fall  within  the  defini- 
tion of  an  account.  It  was  said  by  Chief  Justice  Shaw  in  Whitwell  v. 
Willard,  1  ]\Ietc.  (Mass.)  216,  that  the  primary  idea  of  account,  com- 
putatio,  is  some  matter  of  debt  and  credit,  or  demands  in  the  nature 
of  debt  and  credit  between  parties ;  that  it  implies  that  one  is  respon- 
sible to  another  for  money  or  other  things,  either  on  the  score  of  con- 
tract, or  of  some  fiduciary  relation.  It  is  doubtless  true,  however,  that 
it  would  be  sufficient  to  come  within  the  definitionif  the  accounts  were 

Raym.  928  (1704);    Tatlock  v.  Harris,  3  T.  R.  174  (1789);    Weston  v.  Barker, 
12  Johns.  (N.  Y.)  276,  7  Am.  Dee.  319  (1S15).  Contra.  , 

See   Professor    Henning's    article   in   3    Select    Essays    in   Anglo-American    — H 
Legal  History,  339,  that  Account  and  Debt  will  lie  in  such  a  case.    Compare 
the  doctrine  of  Peuu    v.  Flack,  post,  p.  280. 


250  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

all  on  one  side,  provided  tlie  amount  were  agreed  to  by  the  parties. 
Langdon  v.  Roane's  Adm'r,  6  Ala.  518,  41  Am.  Dec.  60,  and  note.* 
The  form  adopted  by  Chitty,  and  ever  since  followed,  is  that  "the  de- 
fendant accounted  with  the  plaintiff  of  and  concerning  divers  sums  of 
money  before  then  due  from  the  defendant  to  the  plaintiff,  and  then 
in  arrear  and  unpaid,  and  that  upon  such  accounting  the  defendant  was 
found  to  be  in  arrear  to  the  plaintiff  in  a  named  sum,  and  that,  being 
so  found  in  arrear  and  indebted,  the  defendant  in  consideration  there- 
of undertook  and  faithfully  promised,"  etc.,  and  the  allegation  of  the 
breach  in  this,  as  in  the  other  common  counts,  is :  "Yet  the  defendant, 
not  regarding  his  said  promises,  *  *  *  hath  not,  although  often 
requested,  as  yet  paid  said  sum  of  money,"  etc.  Bouvier  defines  "ac- 
count stated"  as  an  agreed  balance  of  account.  It  was  held  in  Comer 
V.  Way,  107  Ala.  300,  19  South.  966,  54  Am.  St.  Rep.  93,  that  an  ac- 
count stated  is  an  account  balanced  and  rendered,  with  an  assent  to 
the  balance,  express  or  implied,  so  that  the  demand  is  essentially  the 
same  as  if  a  promissory  note  had  been  given  for  the  balance.  See,  also, 
2  Enc.  PI.  &  Pr.  1024. 

We  also  refer  to  some  of  the  earlier  authorities.  It  is  said  in  1 
Saund.  PI.  &  Ev.  (5th  Ed.)  page  47,  in  respect  to  a  recovery  upon  this 
count,  that  it  must  be  proved  that  the  account  was  "of  money  or  a 
debt."  It  is  also  there  said  that  an  account  stated  does  not  alter  the  na- 
ture of  the  original  debt.  It  was  held  in  Knowles  v.  Mitchell,  13 
East,  249,  that  an  admission  by  the  defendant  that  a  certain  sum  was 
agreed  to  be  paid  to  the  plaintiff  for  the  sale  of  standing  trees,  made 
after  the  trees  had  been  felled  and  taken  away  by  the  defendant,  would 
support  a  count  upon  an  account  stated.  It  was  decided  in  Whitehead 
v.  Howard,  5  Moore,  105,  cited  in  Saunders,  that  a  recovery  could  not 
be  had  upon- this  count  because  there  was  no  existing  antecedent  debt 
due  from  the  defendant  to  the  plaintiff.  Willis  v.  Jernegan,  2  Atk. 
251 ;  Peacock  v.  Harris,  10  East,  106.  If  the  defendant  in  the  present 
case  was  primarily  liable  to  the  plaintiff,  it  was  in  an  action  of  tres- 
pass on  the  case  for  a  tort.  The  damages  consequent  upon  the  wrong- 
ful act  were  not  a  proper  subject  of  book  account,  and  were  not  treated 
as  such  by  the  plaintiff.  He  paid  for  the  repairs,  and  took  receipted 
bills  for  such  payments. 

The  plaintiff  relies  upon  this  sentence  in  the  opinion  in  Powers  v. 
Insurance  Co.,  68  Vt.,  on  page  396,  35  Atl.,  on  page  333 :  "It  is  un- 
necessary, in  order  to  support  this  count  (account  stated),  to  show  the 
nature  of  the  original  debt,  or  prove  the  specific  items  constituting 

4  Jasper  Co.  v.  Lampkiu,  162  Ala.  3SS,  50  South.  337,  24  L.  R.  A.  (N.  S.) 
1237,  136  Am.  St.  Rep.  33  (1909)  semble.  Accord. 

You  may  state  au  account  as  to  one  transaction.  Knowles  v.  Michel, 
13  East,  249  (1811);  Ilighmore  v.  Primrose,  5  M.  &  S.  65  (1816);  Ware  v. 
Dudley,  16  Ala.  742,  740  (1S49);  Powers  v.  New  England  Fire  Ins.  Co.,  68 
Vt.  390,  396,  35  Atl.  331   (189G). 

An  account  can  be  stated  only  of  a  past  transaction  or  transactions.  Lub- 
bock V.  Tribe,  3  M.  &  W.  607  (1838) ;    2  PI.  &  Pr.  1024. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  251 

the  account ;  but  it  must  appear  that  at  the  time  of  the  account  a 
certain  claim  existed,  of  and  concerning  which  an  account  was  stated." 
That  the  court  was  not  considering  the  right  of  a  party  to  recover  for 
a  tort  in  an  account  stated  is  apparent  from  the  fact  that  the  plaintiff 
in  that  case  was  seeking  to  recover  upon  an  insurance  contract,  and  an 
amount  that  he  claimed  had  been  agreed  upon. 

Bradley  v.  Phillips,  52  Vt.  517,  is  distinguishable  from  the  present 
case.     There  the  parties,  being  owners  of  adjoining  lands,  each  had 
cut  logs  over  the  line  on  the  other's  land.     They  settled  by  an  agree- 
ment that  each  should  pay  the  other  at  specified  rates   for  the  logs 
taken,  and  the  plaintiff  had  paid  the  defendant.    But  the  latter,  though 
having  taken  the  property  and  having  promised  to  pay  for  it,   and 
having  induced  the  plaintiff  to  pay  for  what  he  had  taken,  refused  to 
pay  the  plaintiff.     The  court  held  that  the  question  was  one  purely  of 
contract,  that  the  defendant's  agreement  was  to  pay  the  plaintiff'  for 
what  logs  he  had  taken,  that  nothing  remained  for  him  to  do  but  pay 
over  the  money,  and  that  the  plaintiff  could  recover  upon  the  com- 
mon counts.    .  The  defendant's   liability  was  the  same   as  if  he   had 
bought  the  logs  and  promised  to  pay  the  plaintiff  for  them.  _The  par- 
ties^in  legal  effect,  waived  their  respprfivp  r1aiiTTs_for  torts,  settled 
Thelrclaims,  and  promised  to  pav  parh  oflipr  the  sums  agreed  upon  for 
The^log-s  each  had. taken,  whereupon  each  became  the  othfr't;  riphtnr 
In  the  case  before  us  the  defendant  chd^  nnfjTpmmp  thp  ph  in  tiff's 
debtor,  and,  upon  the  authorities,  he  cannot  recover  upon  the  count  for 
^an__accQunt -Stated, — • 

Judgment  reversed^  and  caiis£  remanded." 


DAVIS  V.  SMITH. 

(Supreme  Judicial  Court  of  Maiue,  1SS7.     79  Me.  351,  10  Atl.  55.) 

Foster,  J.«  This  action,  brought  upon  a  contract  of  indemnity, 
comes  to  this  court  upon  a  full  report  of  the  evidence,  with  the  stip- 
ulation that  the  court  is  authorized  to  draw  such  inferences  therefrom 
as  a  jury  might  legally  do.  It  appears  that  the  plaintiff,  on  January 
24,  1871,  gave  his  negotiable  promissory  note  for  $209  to  Harrison 
Dorr,  guardian  of  Rosetta  Dorr,  niece  of  the  defendant,  payable  on 
the  first  day  of  January,  1874.  The  defendant  had  obtained  letters 
of  guardianship  in  an  adjoining  county  in  which  she  resided,  and  with 

5  Whitehead  v.  Howard,  5  Moore,  105  (1820) ;  Gould,  v.  Coombs,  1  'C.  B.  543 
(1845)  semble;  Lemere  v.  Elliott.  6  Hurl.  &  N.  656  (1861);  Chase  v.  Chase. 
191  Mass.  556,  77  N.  E.  115  (1906)  semble.  Accord.  Knowles  v.  Michel,  13 
East,  249  (1811)  semble ;  Ingram  v.  Shirley,  1  Stark.  185  (1816)  ;  Throop  v. 
Sherwood,  9  111.  92,  98  (1847);  Page  v.  Babbit,  21  N.  H.  389  (1850)  semble; 
Powers  V.  New  England  Fire  Ins.  Co.,  68  Vt.  390,  396,  35  At',  331  (1896). 
Contra.     See,  generally,  note  in  27  L.  R.  A.  811. 

6  Parts  of  the  opinion  are  omitted. 


252  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

whom  Rosetta  was  at  that  time  living ;  and,  soon  after  the  note  became 
■due,  represented  to  the  plaintiff  that  she  was  the  lawful  guardian  of 
Rosetta  Dorr,  and  as  such  was  legally  authorized  to  collect  said  note, 
whereupon  the  plaintiff  paid  the  defendant  the  sum  of  $231.21,  the 
amount  then  estimated  to  be  due  upon  the  note.  At  the  same  time,  and 
in  consideration  thereof,  the  defendant  agreed  in  writing  to  fully  in- 
demnify and  save  the  plaintiff  harmless  in  consequence  of  his  paying 
the  note  to  her.  Suit  was  afterwards  commenced  by  the  indorsee  of 
the  note.  The  case  was  tried  and  carried  to  the  full  court.  Finally, 
judgment  was  rendered  against  this  plaintiff  for  the  amount  of  the 
note,  and  interest  thereon  from  date.  Dorr  v.  Davis,  76  Me.  301. 
After  judgment  was  rendered  against  him  this  plaintiff  paid  the 
amount  of  it,  together  with  costs  of  suit,  to  the  plaintiff  in  that  action, 
and  now  seeks  to  recover  the  sum  thus  paid,  amounting  to  $479,  from 
the  defendant  in  this  suit.     *     *     * 

Nor  do  we  think  that  the  objection  of  the  defendant  is  tenable,  that, 
there  being  a  written  contract  of  indemnity,  the  plaintiff  must  declare 
specially  upon  such  contract,  and  will  not  be  allowed  to  introduce 
proof  in  support  of  his  claim  under  the  general  count  for  money  paid. 
The  objection  is  one  of  form,  and  does  not  touch  the  real  merits  of  the 
case.  Still,  if  it  rests  on  sound  legal  principles,  it  is  the  duty  of  the 
court  to  give  effect  to  it.  It  is  undoubtedly  the  general  rule  of  law 
that,  where  the  parties  have  made  an  express  contract,  the  law  will  not 
imply  one.  But  this  rule  is  not  inflexible,  and,  like  most  general  rules, 
is  subject  to  exceptions.  Thus  it  has  been  held  that,  where  the  speci_al 
contract  is  not  under  seal,  the  plaintiff  has  liis  option,  under  some  cir- 
"clmistances,  either  to  declare  on  the  im£lied  promise,  or  to  set  out  the 
^  special  contract"  In  TTTs  declaration.  ,  Tousey  v.  Preston,  1  Conn.  175. 

— AiT  a"ctioh  f  ormoney  had_  and  received  will  lie  on  a  promias-ory  rurtir 

"oFbill  of  exchange,  and  yet  they  are  express  contracts,     Pitkin  v. 

■~Fnnl<:'8T\IetcrXT\rass.)  12;   Henschel  v.  Mahler,  3  Denio  (N.  Y.)  428. 

— Itjsjilso^a  reasonable^ and_welLj:£CQoiiized  principle  of  4aw,  settled  b^ 

numerous  decided  f^.grj^tJH.t  whfrp  thprp  i^  an  pyprpc^g  rontrant  pf  in-._ 

"  demnity^,  and  by  its  terms  it  contains  nothing  more  than  the  law  would 
Hniply,  it  is  optional  with  the  plaintiff  to  declare  in  general  indebitatus. 

"^sumpsit  for  money_paJd,  oiLupon  tli£:Sp^ed;ai_£Oiitract.   

nTis  question  arose  in  Gibbs  v.  Bryant,  1  Pick.  (Mass.)  118,  where 
a  written  promise  of  indemnity  had  been  given  to  the  plaintiff  by  the 
defendant;  and,  upon  objection  by  the  defendant  that  there  was  a 
special  agreement  which  ought  to  have  been  declared  on,  the  court 
say:  "This  objection  cannot  avail  the  defendant  because  the  written 
contract  produced  contained  nothing  more  than  what  the  law  would 
imply.  The  right  of  action  rests  upon  the  payment  of  money  for  the 
use  of  the  defendant.  The  law  raises  a  promise,  and  the  plaintiff  may 
make  use  of  his  written  contract  or  not,  as  he  pleases.  If  there  is 
anything  in  the  written  promise  to  contradict  the  implication  of  law, 
the  defendant  may  show  it."     Precisely  the  same  doctrine  was  laid  down 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)   ASSUMPSIT  253 

in  Sanborn  v.  Emerson,  12  N.  H.  58,  where  the  declaration  contained 
a  general  count  for  money  paid,  laid  out,  and  expended  for  the  use  of 
the  defendant.  There  the  plaintiff  had  receipted  for  the  property  of 
the  defendant  attached  in  sundry  suits  commenced  against  him,  and  had 
the  actual  custody  of  it,  and  at  the  request  of  the  defendant  the  plain- 
tiff delivered  the  property  to  him  ;  the  defendant  expressly  agreeing  that 
the  plaintiff  should  be  indemnified  and  saved  harmless  on  account  of 
the  obligation  resting  upon  him  in  consequence  of  his  having  receipted 
for  the  property  attached.  Judgments  were  afterwards  recovered  in 
the  several  suits ;  and  the  plaintiff,  being  unable  to  surrender  the  prop- 
erty, was  compelled  to  pay  the  amount  of  the  several  judgments.  The 
court  there  say  that  the  case  comes  "directly  within  the  principle  of 
the  decision  in  Gibbs  v.  Bryant;  the  special  contract,  as  it  appears, 
containing  nothing  more  than  the  law  would  imply.  On  this  branch  of 
the  case,  then,  we  hold  that  the  action  is  well  maintained,  notwith- 
standing the  existence  of  the  special  contract  of  indemnity,  and  the 
omission  to  set  it  out  in  the  declaration;  and  the  objection  that  the 
action  should  have  been  brought  on  the  express  contract  is  therefore 
overruled."  The  following  cases  sustain  the  same  principle:  Colburn 
V.  Pomeroy,  44  N.  H.  23 ;  Rushworth  v.  Moore,  36  N.  H.  195 ;  White 
v.  Leroux,  1  Moody  &  M.  347,  22  E.  C.  L.  331 ;  Williamson  v.  Hen- 
ley, 6  Bing.  299,  19  E.  C.  L.  89;  Pownal  v.  Ferrand,  6  Barn.  &  C. 
439,  13  E.  C.  L.  232,  233 ;  Keyes  v.  Stone,  5  Mass.  394.  The  relation 
of  the  presgnt-paiiie^Jjueference^t^  the  note  upon  which  the  indemni- 
^ty^_was  given,  was  such  as  would  in  law  raise  an  implied  duty  or  ob- 
ligation  of  indemnity  as  strong  as  where  a'Teceiptof,  upotrTequest, 

*h;td  delivered  up  property  to  the  owner  against  whom  suits  had  been 
l^oirimeiiced.    The^deTehdant  in  tlie  one  case  had  no  right  to  the  prop- 

""CTt3r;  in  the  Othef,  no  right  to  the  money  or  note ;  and  the  contract 
of  indemnity  in  both  cases  contained  no  more  than  the  law  would  imply 

^he  plaintiff  alleges  that  he  has  paid  so  much  jnoney  jor^the^use  q1_ 
the  defendaHfr~""To~sustam  this^  allegation  it  is  necessary^ or  him  to 
sHbw  that  the  tnoney^as  paid  at  the  defen^nt's  request^_£itli£ii_£:sL: 

'  press"6r  implied.  -"The  r^quesfTo^ay,  and  the  payment  according  to 

~lt^  constitufF~the-debt ;  and  whether  the  request  be  direct,  as  where 
the  party  is  expressly  desired  by  the  defendant  to  pay,  or  indirect, 
where  he  is  placed  by  him  under  a  liability  to  pay,  and  does  pay,  makes 
no  difference.     *     *     *    Jji_eyeT^r^j^^  therefore,  in  whjrlijihprf  lias 

_b££Ji_a^ payment  of  money  bv  t lie  plaintifLJxi--a-third43iirlyL_at  the  ^l&l. 
quest  of  the  defendant^  express_orJmpJied,_on_a_j)rojms_^^ 

'  implted,^to  repay  the  amount,  this  form  of  action  is  maintainable." 
Brittain  v.  Lloyd,  14  Mees.  &  W.  773.  And  the  doctrme~of  the  courts 
is  that  where  the  plaintiff  shows  that  he,  either  by  compulsion  of  law, 
or  to  relieve  himself  from  liability,  has  paid  money  which  the  defend- 
ant ought  to  have  paid,  this  count  will  be  sustained.  2  Greenl.  Ev.  § 
114;  Nichols  v.  Bucknam,  117  Mass.  491.  In  such  case,  said  Lord 
Tenterden,  C.  J. :    "I  am  of  the  opinion  that  he  is  entitled  to  recover 


254  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

upon  the  general  principle  that  one  man  who  is  compelled  to  pay  mon- 
ey which  another  is  bound  by  law  to  pay,  is  entitled  to  be  reimbursed 
by  the  latter;  and  I  think  that  money  paid  under  such  circumstances 
may  be  considered  as  money  paid  to  the  use  of  the  person  who  is  so 
bound  to  pay  it."  Pownal  v.  Ferrand,  6  Barn.  &  C.  439,  13  E.  C.  L. 
231.     *     *     * 

Judgment  for  plaintiff  for  $479,  and  interest  thereon  from  the  date 
of  the  writ.'^ 

Peters,  C.  J.,  and  Waeton,  DanForth,  Emery,  and  Haskele,  JJ., 
concurred. 


LORD  &  McCRACKEN  v.  HENDERSON  et  al. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1909.    65  W.  Va.  321,  64  S.  E. 

13-t.) 

Error  to  Circuit  Court,  Randolph  County. 

Action  by  Lord  &  McCracken  against  S.  S.  Henderson  and  others. 
Judgment  for  plaintiffs,  and  defendants  bring  error.    Reversed. 

MiLLER;,  P.*  In  an  action  of  assumpsit,  on  the  common  counts  and 
a  special  count,  with  bill  of  particulars,  the  plaintiffs  obtained  a  verdict 
and  judgment  against  defendants  for  $875.  In  the  special  count  a 
contract  in  writing  between  plaintiffs  and  defendants,  dated  November 
7,  1903,  was  alleged,  whereby,  in  consideration  of  the  prices  stipulated 
to  be  paid  them  therefor,  the  plaintiffs  contracted  with  defendants  to 
pile,  peel,  properly  cure,  and  load  on  cars,  according  to  railroad  regula- 
tions, all  the  merchantable  bark  from  green  hemlock  timber  standing 
on  lands  of  the  defendants  and  to  be  designated  by  them,  and  to  cut 
into  suitable  log  lengths  all  the  merchantable  saw  timber  on  said  land 
from  which  bark  could  be  peeled,  and  to  deliver  said  logs  either  at 
convenient  places  for  leading  at  the  railroad  of  the  defendants,  or  in 
a  dam  accessible  to  defendants'  sawmill,  and  also  to  cut,  trim,  and  de- 

7  Gibbs  V.  Bryant,  1  Pick.  (Mass.)  118  (1822);  Sanborn  y.  Smerson,  12  N. 
H.  57  (1841).  Accord.  Executor  of  White  v.  Woodruff,  1  kuot  (Conn.)  309 
(1791).  Contra. 

When  the  defendant  receives  money  which,  under  the  terms  of  a  contract 
with  the  plaintiff,  he  is  bound  to  turn  over  to  the  plaintiff,  the  common 
counts  will  lie.  Farmer  v.  Russell,  1  B.  &  P.  296  (1798),  semble;  Pettibone 
V.  Pettibone,  4  Day  (Conn.)  175  (1810) ;  Tousey  v.  Preston,  1  Conn.  175 
(1814);  Tuttle  v.  Mavo,  7  Johns.  (N.  Y.)  132  (1810);  Stoever  v.  Stoever,  9 
Serg.  &  R.  (Pa.)  434  (1823). 

In  other  cases  where  the  question,  whether  a  common-law  debt  is  neces- 
sary to  maintain  indebitatus  assumpsit,  has  arisen,  the  courts  have  divided. 
That  it  is  necessary,  see:  Clarke  v.  Webb,  1  C.  M.  &  R.  29  (1834);  Lorton 
V.  Agnew,  Morris  (Iowa)  64  (1840);  Miller  v.  Watson,  4  Wend.  (N.  Y.)  267, 
275  (1830) ;  Ilersey  v.  Northern  Assur.  Co.,  75  Vt.  441,  56  Atl.  95  (1903)  sem- 
ble. That  it  is  not  necessary,  see:  Cigar  Union  v.  Huecker,  123  111.  App. 
336  (1905);  Peltier  v.  Sewall,  12  Wend.  (N.  Y.)  386  (1834:  apparently  one 
ground  of  decision);  Bradley  v.  Phillips,  52  Vt.  517  (1880);  RoweU  v.  Dun- 
woodie,  69  Vt.  Ill,  115,  37  Atl.  227  (1896). 

8  Part  of  the  opinion  omitted. 


i 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  255 

liver  at  defendants'  railroad,  at  a  point  suitable  for  loading  same,  all 
spruce  pulp  wood.  The  bark  was  to  be  paid  for  at  the  rate  of  $3.50 
for  every  cord  of  2,000  pounds,  the  weight  to  be  determined  by  the 
tannery  weight.  The  logs  were  to  be  scaled  by  the  defendants  or  a 
competent  agent  by  the  Doyle  or  Scribner  rule  before  being  sawed  at 
defendants'  mill,  and  were  to  be  paid  for  at  the  rate  of  $3.50  per 
1,000  feet  for  spruce  and  hemlock,  and  $4  per  1,000  feet  for  hardwood 
logs.  The  pulp  wood  was  to  be  paid  for  at  the  rate  of  $2  per  cord 
of  128  cubic  feet,  and  according  to  the  measurements  which  the  defend- 
ants should  receive  from  the  pulp  company.  In  the  bill  of  particu- 
lars filed  defendants  are  charged  by  plaintiffs  as  follows :  To  cash 
charged  plaintiffs  not  received,  $1,000;  to  350,000  feet  spruce  and 
hemlock  timber  cut  and  delivered,  not  accounted  for,  at  $3.56 -per 
1,000,  $1,225;  to  damage  done  roads,  $500;  to  damage  done  plaintiffs 
by  taking  timber  nearest  dam  and  railroad,  $200;  to  tan  bark  in  woods 
and  at  railroad  burnt  by  negligence  of  defendants,  $100. 

Early  in  the  trial  below  plaintiffs,  in  proof  of  the  first  item  of  their 
account,  endeavored  to  show  by  the  witness  McCracken  that  in  their 
statement  rendered  for  the  month  of  October,  1903,  defendants  had 
shown  as  the  balance  due  them  at  that  time  $6,103.60  and  that  in  the 
statement  for  the  month  of  November,  1903,  they  had  brought  down 
this  balance  as  $6,500.98,  a  difference  of  $397.38.  When  plaintiffs' 
counsel  asked  the  witness  whether  he  could  explain  why  defendants 
had  made  this  difference  against  his  firm,  he  answered:  "I  cannot." 
The  motion  by  defendants  to  exclude  this  question  and  answer  was 
overruled.  Immediately  afterwards,  however,  when  plaintiff's'  coun- 
sel asked  the  witness  to  state  when  he,  in  fact,  began  v/ork  for  the 
defendants  under  the  contract,  and  why  the  written  contract  bore  date 
of  November  7,  1903,  the  objection  by  defendants'  counsel  thereto  was 
sustained.  And  thereafter,  for  a  time  at  least,  the  court  limited  plain- 
tiffs in  their  evidence  to  transactions  subsequent  to  that  date.  Later, 
when  it  began  to  appear  that  the  evidence  thus  restricted  might  show 
an  erroneous  condition  of  the  account  between  the  parties,  counsel  for 
defendants,  on  cross-examination  of  plaintiff  McCracken,  endeavored 
to  extend  the  investigation  back  of  that  date,  and  to  show  that  although 
the  contract  bore  date  of  November  7,  1903,  it,  in  fact,  was  a  mere  re- 
duction to  writing  of  a  prior  verbal  contract  under  which  the  plaintiffs 
had  been  operating  since  about  April,  1903.  But  objections  thereto  by 
plaintiffs'  counsel  were  sustained.  The  above  ruling  of  the  court  on 
defendants'  motion  to  exclude  the  question  and  the  answer  thereto  of 
the  witness  McCracken,  relating  to  the  dift'erence  in  the  balance  shown 
in  the  statement  of  October,  and  that  brought  down  in  the- statement 
of  November,  1903,  and  the  subsequent  rulings  of  the  court  on  the  sev- 
eral questions  propounded  said  McCracken  on  cross-examination,  are 
made  the  subject  of  defendants'  bills  of  exceptions  Nos.  2,  3,  4,  and  5, 
relied  on,  which  will  be  considered  together. 

These  rulings  of  the  court  we  think  were  based  on  the  erroneous 


256  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

theory  that  plaintiffs  were  necessarily  limited  in  their  proof  to  the  mat- 
ters alleged  in  the  special  count.  The  allegations  of  the  special  count 
and  the  evidence  on  the  trial  show  a  contract  fully  executed  on  the 
part  of  the  plaintiffs,  and  that  nothing  remained  to  be  done  on  the 
part  of  the  defendants  except  to  pay  plaintiffs  the  balance,  if  anything, 
due  them,  and  that  the  contract  no  longer  remained  executory.  A  spe- 
cial count  therefore  was  unnecessary.  The  plaintiffs,  if  entitled  to  re- 
cover anything,  were  entitled  to  recover  upon  the  common  counts.^ 
Railroad  Co.  v.  Lafferty,  2  W.  Va.  104;  Railroad  Co.  v.  Polly,  Woods 
&  Co.,  55  Va.  447;  Tuttle  v.  Mayo,  7  Johns.  (N.  Y.)  132— all  cited 
with  approval  in  Bannister  v.  Coal  &  Coke  Co.,  63  W.  Va.  502,  507, 
61  S.  E.  338.  In  the  latter  case  we  quote  from  Tuttle  v.  Mayo,  supra, 
that  "where  the  party  declares  on  a  special  agreement  seeking  to  recov- 
er thereon,  but  fails  altogether,  he  may  recover  on  a  general  contract, 
if  the  case  be  such  that,  supposing  there  had  been  no  special  contract, 
he  might  still  have  recovered."  ^°  We  think,  therefore,  that  the  rul- 
ings of  the  court  in  so  limiting  the  evidence  of  the  parties  were  erro- 
neous, and  that  the  action  of  the  court  below  overruling  defendants' 
motion  to  strike  out,  set  forth  in  defendants'  bill  of  exceptions  No.  2, 
was  right.     *     *     * 

Reversed.  If 

9  Merrill  v.  Worthington,  155  Ala.  281,  46  South.  477  (1908);  Massey  v. 
Greenabanm,  5  Pennewill  (Del.)  20,  58  Atl.  804  (1904) ;  Johnson  v.  Lee  Toma 
Co.,  16  Haw.  693  (1905);  Evans  v.  Howell,  211  111.  85,  71  N.  E.  854  (1904); 
Rogers  v.  Brown,  103  Me.  478,  70  Atl.  20G  (1908);  So.  Ass'n  v.  Price,  88 
Md.  155,  41  Atl.  53,  42  L.  R.  A.  206  (1S9S);  Fish  v.  Gates,  183  Mass.  441 
(1882);  Nicol  v.  Fitch,  115  Mich.  15,  72  N.  W.  988,  69  Am.  St.  Rep.  542 
(1897);  Risley  v.  Beaumont,  71  N.  J.  Law,  372,  59  Atl.  145  (1904);  Ladue  v. 
Seymour,  24  Wend.  (N.  Y.)  60  (1840);  Atherton  v.  Goldsmith,  22  R.  I.  376, 
48  Atl.  141  (1901);  Dermott  v.  Jones,  2  Wall.  1,  9,  17  L.  Ed.  762  (1864).  Ac- 
cord. Numerous  other  cases  accord  are  collected  in  4  Cyc.  328.  Occasional 
cases  to  the  contrary,  such  as  Russell  v.  So.  Britain,  9  Conn.  507,  521  (1833), 
and  Hogan  v.  Gibson,  12  La.  457  (1838),  are  probably  to  be  disregarded. 

10  Leeds  v.  Burrows,  12  East,  1  (1810);  Brewer  Co.  v.  Hermann,  88  111. 
App.  285  (1899);  Tuttle  v.  Mayo,  7  Johns.  (N.  Y.)  132  (1810);  Manilla  v. 
Houghton,  154  Mass.  405,  28  N.  E.  784  (1S91);  Ruckman  v.  Bergholz,  37  N. 
J.  Law,  437  (1874);  Barnes  v.  Gorman.  9  Rich.  (S.  C.)  297  (1856).  Accord. 
Cooke  V.  Munstone,  1  B.  &  P.  N.  R.  351  (1805)  semble;  Speake  v.  Sheppard, 
6  Har.  &  J.  (Md.)  81  (1823);  Norris  v.  Durham,  9  Cow.  (N.  Y.)  151  (1828). 
Contra.  See,  also,  Morris  v.  Burton,  4  Har.  (Del.)  53  (1843),  in  which  the 
question  was  left  undecided. 


I 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  257 

PIERSON  V.  SPAULDING. 

(Supreme  Court  of  Michigan,  1886.    61  Mich.  90,  27  N.  W.  SG5.) 

Campbell,  C.  J.  This  is  an  action  of  assumpsit  begun  by  attach- 
ment as  upon  a  special  contract,  but  with  a  declaration  merely  on  the 
common  counts.  A  bill  of  particulars  was  demanded  and  filed  under 
the  statute,  which  dates  the  contract  as  of  June  17,  1885,  and  is: 

To  the  price  and  value  of  a  stock  of  hardware,  tinners'  tools,  and  fix- 
tures, sold  and  delivered  by  plaintiff  to  defendant  at  his  request....  $4,500 
To  interest  on  the  same 300 

$4,800 

The  attachment  was  sued  out  immediately  after  the  alleged  sale,  and 
levied  on  the  same  property.  Defendant  pleaded  the  general  issue, 
and  also,  by  notice,  that  the  alleged  contract  was  a  written  contract, 
copied  in  the  notice,  and  that  plaintiff  did  not  live  up  to  his  own  agree- 
ment in  several  particulars  set  forth.  The  agreement,  dated  May  25, 
1885,  was  substantially  as  follows :  Plaintiff  was  to  sell  to  defend- 
ant his  stock  of  hardware,  tinners'  tools,  and  stove  fixtures  in  his  store 
at  Three  Rivers,  reserving  whatever  it  should  inventory  beyond  $4,500, 
which  excess  plaintiff  was  to  take  in  hardware.  Defendant  was  to  pay 
$4,500  as  follows :  $3,000  by  conveyance  of  a  specified  farm  of  63 
acres,  and  the  balance  in  cash, — all  to  be  done  when  the  inventory 
should  be  completed.  Plaintiff  was  to  have  one-fourth  of  the  hay  and 
corn  then  on  the  ground,  and  defendant  three-fourths.  The  inventory 
was  to  be  made  and  delivered,  on  June  1,  1885,  and  deed  and  payment 
to  be  made  the  same  day.  Nothing  was  provided  concerning  the  basis 
of  the  inventory,  which  could  only  be  made,  therefore,  upon  some 
agreed  standard  of  prices.  There  was  a  conflict  concerning  the  fair- 
ness of  the  inventory,  and  concerning  the  custody  of  the  goods.  The 
inventory  was  not  completed  until  several  days  after  it  should  have 
been,  and  several  matters  of  contention  appear  to  have  arisen.  The  de- 
fendant refused  to  perform,  and  did  not  convey  the  land.  After  the 
suit  was  begun,  he  conveyed  it  to  another  person. 

In  our  view,  this  suit  could  not  be  based  on  the  common  counts.  The 
contract  was  a  special  one,  and  did  not  rest  on  a  money  price.  The 
fact  that  the  land  was  to  be  conveyed  for  $3,000  of  the  inventory  price 
does  not  indicate  that  the  inventory  or  land  were  priced  at  their  cash 
value.  The  sale  was  one  in  part  for  cash,  and  in  part  for  a  specific 
thing.  A  breach  of  the  contract  must  be  measured  in  damages  by  the 
amount  of  injury  done,  which  would  involve  an  inquiry  into  the  actual 
and  not  the  nominal  value  of  the  land.  There  were  also  to  be  de- 
ducted from  the  land  three-fourths  of  the  growing  crops.  There  is  no 
propriety  in  treating  this  as  a  sale  on  a  money  basis.  The  authorities 
which  allow  suit  under  the  common  counts  for  what  is  due  on  a  con- 
tract performed  on  the  plaintiff's  part  confine  the  recovery  to  money 


258  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

due.  It  does  not  reach  to  anjthing  else.  Our  own  decisions  cover 
the  case,  and  therefore  we  shall  not  look  elsewhere.  Special  contracts 
must  be  sued  on  specially,  if  relied  on  for  recovery,  with  that  single 
exception.  Begole  v.  McKenzie,  26  Mich.  470,  and  notes;  Butterfield 
V.  Seligman,  17  Mich.  95,  See,  also,  1  Chit.  PI,  298,  In  order  to  sus- 
tain the  action  here  under  the  common  counts  by  aid  of  the  special 
contract,  it  should  have  involved  a  promise  to  pay  money  for  the  goods 
in  default  of  the  land.^^  The  contract  is  the  only  possible  basis  of  re- 
covery here,  and  it  makes  the  land  the  only  consideration  for  the  great- 
er part  of  the  goods. 

There  are  some  other  objections  which  would  be  worth  considering 
if  this  were  not  fundamental ;    but  we  so  regard   it  on  this  record. 

The  judgment  must  be  reversed,  with  costs,  and  a  new  trial 
granted.  ^^ 

The  other  Justices  concurred. 


LEEDS  V.  BURROWS. 

(Court  of  King's  Bench,  1810.     12  East,  1.) 

This  was  an  action  on  the  case  on  promises.  The  first  count  of  the 
declaration  was  framed  upon  a  special  agreement,  and  stated  that  the 
plaintiff,  being  possessed  of  a  certain  farm,  as  tenant  to  T.  W,  C,  on 

11  Whether  recovery  could  then  be  had  on  the  common  counts  may  be  con- 
sidered in  connection  with  Crockett  v.  Moore,  post,  p.  358. 

12  Harris  v,  Fowle,  cited  in  1  H.  Bl.  287  (1TS7) ;  Talver  v.  West,  1  Holt  N. 
P.  178  (1816)  semble;  Bernard  v.  Dickins,  22  Ark.  351  (ISCO);  Coursey  v. 
Covin!,'ton,  5  Har.  &  .J.  (Md.)  45  (1820),  Accord.  Stewart  v.  Craig,  3  G.  Greene 
(Iowa)  505  (1852).  Contra. 

Where  the  payment  of  money  is  not  even  part  of  what  the  defendant 
promised,  the  common  counts  will  not  lie.  Canfield  v.  Gilbert,  4  Esp.  221 
(180.3) ;  Horn  v.  Beiisusan,  9  C.  &  P.  709  (1841) ;  Suedicor  v.  Leachman,  10 
Ala,  330  (1S46);  Hurlock  v.  Murphy,  2  Houst.  (Del.)  550,  556  (1863);  Rus- 
sell V.  Gillmore,  54  111.  147  (18701;  Conner  v.  Henderson,  15  Mass.  319,  8 
Am.  Dec.  103  (1818);  Hosmer  v.  Wilson,  7  Mich.  294,  74  Am.  Dec.  716  (1859); 
New  Orleans  Ry.  v,  Pressley,  45  Miss.  00  (1871);  Mitchell  v,  Gile,  12  N.  H. 
390  (1841);  Weart  v,  Iloagland,  22  N,  J,  Law,  517  (1850);  Beardslee  v. 
Richardson,  11  Wend.  (N.  Y.)  25,  25  Am.  Dec.  596  (1833);  Weiss  v.  Mauch 
Chunk  Iron  Co.,  58  Pa.  295  (1868) ;  Sublett  v.  McLiu,  10  Humph.  (Tenn.) 
181  (1849);  Houston  v.  McXeer,  40  W.  Va.  365,  22  S.  E.  SO  (1895);  King 
v.  Kerr,  3  Pin.  (Wis.)  464  (1852). 
yAud  a  promise  to  the  plaintiff  to  pay  money  to  a  third  party  will  not 
Maintain  a  common  count.     Darden  v,  James,  48  Ala.  33  (1872). 

The  breach  of  a  promise  to  deliver  the  defendant's  note,  bond,  or  like  for 
money  will  not  sustain  a  common  count.  Massen  v.  Price,  4  East,  147  (1803); 
Huuneman  v,  Grafton,  10  Mete.  (Mass.)  454  (1845);  Wooddy  v.  Flournoy,  20 
Va.  506  (1820).  It  may  be  doubted  whether  the  rule  would  be  changed  if 
the  fact  were  that  the  note  or  bond,  if  it  had  been  given,  would  be  now 
overdue.  Dutton  v.  Solomonson,  3  B.  &  P.  582  (1803:  doubting);  Carson  v. 
Allen,  6  Dana  (Ky,)  395  (1838:  semble  that  then  indebitatus  assumpsit 
would  lie). 

There  is  a  little  authority  that  the  common  counts  will  lie  on  a  note  pay- 
able in  goods.  Payne  v.  Couch,  1  G.  Greene  (Iowa)  64,  46  Am.  Dec.  497 
(1847) ;    Craudal  v,  Bradley,  7  Wend,  (N,  Y.)  312  (1831). 


,i'V. 


I 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)    ASSUMPSIT  259 

which  farm  he  had  70  tons  of  hay  and  a  spike  roll,  on  the  11th  of 
Oct.,  1808,  in  consideration  of  the  premises,  and  that  the  plaintiff,  at 
the  defendant's  request,  would  relinquish  to  him  the  hay  and  spike- 
roll,  and  leave  the  same  on  the  farm  for  his  use,  the  defendant  prom- 
ised to  pay  the  plaintiff  so  much  money  as  certain  referees  should  ap- 
praise and  value  the  goods  at.  And  then  the  plaintiff  averred  that  he 
did  relinquish  the  hay  and  spike-roll  to  the  defendant  and  left  them  on 
the  farm  for  his  use ;  and  that  the  referees  valued  and  appraised  the 
goods,  and  determined  that  the  defendant  should  therefore  pay  to  the 
plaintiff*  for  the  same,  and  for  and  in  consideration  of  the  premises, 
£  184.  4s.  The  second  count  was  upon  a  general  indebitatus  assumpsit 
for  a  certain  sum  for  hay  and  farming  utensils  sold  and  delivered  by 
the  plaintiff  to  the  defendant.  The  third  count  was  upon  a  quantum 
valebant ;  and  there  was  also  one  upon  an  account  stated,  together  with 
other  common  money  counts. 

It  appeared  at  the  trial  before  Lord  C.  J.  Mansfield  in  Norfolk,  that 
the  plaintiff  was  the  outgoing  and  the  defendant  was  the  incoming 
tenant  of  a  farm,  and  that  it  ha'd  been  agreed  between  them  that  the 
referees  should  value  the  hay  and  the  spike-roll,  for  which  the  defend- 
ant was  to  pay,  and  should  also  estimate  the  value  of  repairs  for  gates 
and  fences  on  the  farm,  which  the  plaintiff  was  to  make  good.  That 
by  a  memorandum  in  writing,  on  an  appraisement  stamp,  [after  re- 
citing] that  the  plaintiff  was  the  outgoing  and  the  defendant  the  in- 
coming tenant,  and  that  the  plaintiff  at  the  time  of  his  quitting  had 
a  stack  of  hay  and  a  spike-roll  on  the  farm,  which  he  sold  and  agreed 
to  leave  to  the  defendant,  ancj  the  defendant  did  purchase  and  agree 
to  take  at  such  sum  of  money  as  they  (the  referees)  should  value  and 
appraise  the  same,  stated  that  they  (the  referees)  having  met  and  ex- 
amined the  hay  and  spike-roll,  and  considered  their  value,  did  appraise 
and  value  the  same  at  £  184.  4s.  This  was  signed  by  the  referees,  and 
dated  7th  March,  1809;  and  on  the  other  side  of  the  same  paper,  was 
written : 

7th  March,  1809. 

The  hay  and  roll  valued  at £184     4  0 

To  deduct  therefrom  for  repairs  of  gates  and  fences 6  16  0 

Due  to  Mr.  Leeds £177     8  0 

And  this  was  also  signed  by  the  referees.  It  was  thereupon  objected 
that  it  was  part  of  the  agreement  that  the  appraisers  should  value 
the  repairs  of  the  gates  and  fences,  and  that  there  was  a  variance  be- 
tween the  agreement  laid  and  that  proved.  This  objection  was  admit- 
ted by  the  Chief  Justice;  and  though  the  plaintiff's  counsel  insisted 
that  he  was  entitled  to  recover  either  on  the  special  or  the  general 
count,  the  plaintiff  was  nonsuited. 

Grose,  J.,  said,  that  he  saw  no  reason  why  the  plaintiff  might  not 
recover  on  the  general  count  the  value  of  his  goods,  which  had  been 
sold  to  the  defendant  and  taken  possession  of  by  him,  deducting  tlie 
value  of  the  repairs  which  were  to  be  allowed. 


I 


260  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

Le  Blanc^  J.  The  fallacy  consists  in  not  considering  the  plaintiff's 
claim  as  arising  for  goods  sold  and  delivered  to  the  defendant,  as  the 
fact  really  is,  but  in  assuming  that  the  claim  of  the  one  party  was  in 
consideration  of  what  was  to  be  done  on  the  part  of  the  other.  The 
plaintiff's  claim  is  founded  upon  the  sale  and  delivery  of  hay  and  a 
spike-roll  to  the  defendant ;  and  the  agreement  between  them  in  effect 
is  no  more  than  this,  that  as  the  plaintiff  was  indebted  to  the  defendant 
for  something  else,  as  soon  as  the  amount  of  the  defendant's  claim 
was  ascertained,  it  should  be  taken  in  part  payment  of  what  was  to 
be  paid  to  the  plaintiff  for  the  hay  and  spike-roll.  If  it  had  not  been 
so  agreed  to  be  deducted,  it  would  have  been  a  subject  of  set-off;  but 
being  agreed  to  be  taken  as  part  payment,  it  still  leaves  a  sum  due  to 
the  plaintiff  for  goods  sold  and  delivered. 

Bayley,  J.  The  whole  of  the  plaintiff's  demand  was  for  goods  sold 
and  delivered ;  though  he  is  not  entitled  to  recover  the  full  value  of 
his  goods,  because  that  would  be  contrary  to  his  agreement  to  allow 
for  the  value  of  the  repairs  in  part  payment :  the  balance,  therefore,  is 
the  only  debt;  but  that  is  altogether  for  goods  sold  and  delivered. 

Rule  absolute.^ ^ 


BUTTERFIELD  v.  SELIGMAN. 
(Supreme  Court  of  Michigan,  1S6S.    17  Mich.  95.) 

Error  to  Oakland  Circuit. 

This  suit  was  brought  by  defendant  in  error  against  Butterfield,  to 
recover  the  sum  of  $625  and  interest  thereon,  which  sum  had  been 
paid  by  said  Seligman  to  said  Butterfield,  in  pursuance  of  a  special 
written  agreement;  and  for  which  Butterfield  was  to  convey  an  inter- 
est in  certain  lands,  but  which  he  failed  to  perform.    ■ 

The  declaration  was  upon  the  common  counts,  and  to  which  a  bill 
of  particulars  was  annexed,  setting  forth  the  said  agreement,  to  wit : 

"$600.00  Pontiac,  February  28,  1865. 

"Received  of  Jacob  Seligman,  six  hundred  dollars,  in  payment  of 
one-third  of  my  undivided  one-eighth  interest  in  the  following  de- 
scribed property :  One  hundred  and  sixty  acres  on  Black  River,  known 
as  the  Danfield  farm,  and  one  hundred  and  twenty  acres  in  the  town 
of  Eakeport,  on  Lake  Huron.  And  I  agree  to  give  said  Jacob  Selig- 
man a  deed  for  one-third  of  my  undivided  one-eighth  (Vs)  interest  in 
the  above  described  property,  if  the  title  of  the  same  is  found  to  be 
good.  The  above  property  was  contracted  for  on  the  16th  day  of 
February,  1865,  by  J.  C.  Goodsell,  J.  D.  Millis,  Leander  S.  Butterfield, 
and  five  others;  and  in  case  a  good  title  can  not  be  had  of  the  above 
named  property,  I  am  to  return  to  J.  Seligman  six  hundred  and  twen- 
ty-five dollars.  L.   S.  Butterfield." 

1 3  Sheldon  v.  Cox,  3  B.  &  C.  420  (1S24) ;  Holbrook  v.  Dow,  1  Allen  (Mass.) 
397  (1861).  Accord. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  2G1 

On  the  trial  of  the  cause,  the  plaintiff  testified  that  he  did,  on  the 
28th  day  of  February,  1865,  agree  to  purchase  of  said  defendant,  a 
certain  interest  in  certain  lands  in  St.  Clair  County,  and  paid  to  said 
defendant  the  sum  of  six  hundred  and  twenty-five  dollars,  on  that 
day,  and  took  from  him  a  receipt  or  agreement  in  writing.  The  said 
receipt  was  then  offered  in  evidence ;  but  the  counsel  for  the  defend- 
ant objected  to  the  same,  on  the  ground  that  the  evidence  was  not  ad- 
missible, under  the  declaration.  The  counsel  for  the  plaintiff  stated 
that  the  plaintiff  only  sought  to  recover  back  the  money  paid  to  de- 
fendant, and  did  not  seek  to  claim  damages  for  any  breach  of  the 
agreement.    The  court  admitted  the  evidence,  subject  to  objection. 

The  plaintiff  further  offered  proof  tending  to  show  that  in  July, 
1865,  and  before  the  commencement  of  suit,  he  demanded  a  deed  of 
the  land  described  in  the  receipt  or  agreement;  that  defendant  neglected 
to  give  a  deed ;  that  he  then  demanded  the  money  back,  and  defendant 
refused  to  pay  it.  The  plaintiff  also  offered  proof  to  show  that  he 
actually  paid  six  hundred  and  twenty-five  dollars,  and  the  statement 
of  the  receipt  of  six  hundred  dollars  was  a  mistake.  The  above  evi- 
dence was  admitted,  under  objection.^* 

The  jury  rendered  a  verdict  for  the  plaintiff. 

Campbell,  J.  Plaintiff  below  sued  upon  the  common  counts,  and  on 
the  trial  was  allowed  to  recover  upon  proof  of  a  special  written  agree- 
ment, reciting  the  receipt  of  $600  as  payment  for  certain  lands,  which 
defendant  agreed  to  convey  if  he  could  make  good  title,  and  if  he 
could  not  make  good  title,  then  he  was  to  return  to  plaintiff  $625. 

^Thjs_:was_aiL-attempl  to  recqyer  for  thej)reach  of  an  express  con- 
^Jxact^^and-tliere Js  no  principle  wliich  can  allow  its  introduction  in  evi- 
dence  for  the  purpose  of  recovering  whatjt_agrees  to. pay,  and  yet  per-  . 
mit  it  to_be  treated  aj  thrown  out_of_the  case  after-it Jia.s_S£i:Y£.d^its 
purpose.  If  there  was  any  cause  of  action,  it  was  upon  the  writing 
which  the  parties  had  seen  fit  to  make  tlie  evidence  of  their  contract, 
and  the  case  does  not  come  within  any  of  the  exceptions  to  the  rule 
requiring  such  agreements  to  be  declared  on  specially.  The  contract 
was  not  one  where  nothing  remained  to  be_jione_jexc,ej2lpiyiig— the- 


•"pTTCe  fui    bonie  work,  or  serxicC3f  Icommoiiky_ Jmiii^hed_uader_i^ 
~~The~condition  was  one_sided^  and  daimed^tg  have  been  broken,  and  tlie_^ 

Turn  recoverable  was-^othing  more  nor  kss  than  stipulated  damagjss, . 

The  action  was  improperly  brought,  and  the  judgment  must  be  re- 
versed and  a  new  trial  granted.     The  other  questions  become  imma-    - 
terial  as  the  issue  stands.^  ^ 

CooLEY,  Ch.  J.,  and  Graves,  J.,  concurred.     Christiancy,  J.,  did 
not  sit. 

1*  Statement  of  facts  abridged. 

isPhippen  v.  Morehouse,  50  Mich.  537,  15  N.  W.  895  (1883)  semble.     Ac- 
cord.    Sprague  v.  Morgan,  7  Ala.  952  (1845)  semble.  Contra. 


2G2  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

PELTIER  V.  SEWALL. 

(Supreme  Court  of  New  York,  1834.     12  Wend.  386.) 

This  was  an  action  of  assumpsit,  tried  at  New  York  circviit,  in  Sep- 
tember, 1831,  before  -the  Hon.  Ogden  Edwards,  one  of  the  circuit 
judges. 

On  the  trial  of  the  cause,  T.  N.  Wood,  a  witness  for  the  plaintiff, 
testified  that  in  May,  1825,  he  was  ship's  husband  to  the  schooner  Su- 
san Miller,  then  lying  in  the  port  of  New  York,  bound  on  a  voyage  to 
Havre,  in  France ;  and  had  procured  from  the  plaintiff  a  freight  for 
the  vessel,  except  to  the  amount  of  about  16  bales  of  cotton,  which 
were  required  to  fill  her  up.  That  he  applied  to  the  defendant,  H.  D. 
Sewall,  and  his  partner,  E.  B.  Sewall  (who  has  since  died),  who  had 
cotton,  to  ship  it  on  board  his  vessel ;  and  after  some  negotiation,  it 
was  agreed  that  the.  plaintiff  should  advance  to  the  Messrs.  Sewall  the 
price  or  value  of  the.  cotton,  at  the  rate  of  thirty-one  hundredths  per 
pound :  that  the  Mesirs.  Sewall  should  retain  an  interest  of  one  half 
in  the  cotton,  witness  on  account  of  his  owners  should  take  one  fourth, 
and  the  plaintiff'  the  remaining  fourth :  and  that  the  cotton  should  be 
consigned  to  Peltier  and  brothers,  at  Havre,  the  correspondents  of  the 
plaintiff,  for  sale,  and  returns  to  be  made  to  the  plaintiff.  The  plain- 
tiff accordingly  advanced  to  the  Messrs.  Sewall  the  whole  value  of  the 
cotton  at  the  above  price,  amounting  to  $1,863.88.  The  cotton  was 
shipped,  the  bill  of  lading  and  invoice  stating  the  interests  of  the  sev- 
eral parties ;  the  vessel  sailed,  and  the  cotton  was  received  by  the  con- 
signees at  Havre,  who  sold  the  same,  and  in  September,  1824,  trans- 
mitted the  returns  and  an  account  of  sales  to  the  plaintiff,  exhibiting  a 
loss  upon  the  advance  made  by  the  plaintiff.  The  proportion  of  the 
loss  falling  upon  the  Messrs.  Sewall,  was  $368.75,  which  they  refused 
to  pay,  and  the  plaintiff  brought  this  suit,  declaring  upon  the  common 
counts  only.  The  account  of  sales  proved  to  have  been  rendered  by  the 
consignees  was  read  to  the  jury,  although  objected  to  by  the  defendant. 
The  defendant  moved  that  the  plaintiff  be  nonsuited,  on  the  ground 
that  he  should  have  declared  specially  on  the  contract  made  between 
the  parties;  which  motion  the  judge  overruled.  The  defendant  then 
proved  that  three  or  four  bales  of  cotton  were  carried  on  the  deck  of 
the  vessel,  and  that  shortly  after  she  sailed,  he  and  his  partner  ex- 
pressed their  dissatisfaction,  and  deterniination  to  have  nothing  fur- 
ther to  do  with  the  cotton ;  but  it  was  shown  on  the  other  side  that 
the  plaintiff  had  nothing  to  do  with  the  loading  of  the  vessel.  The  jury 
found  a  verdict  for  the  plaintiff  for  $520.73,  which  the  defendant  now 
moves  to  set  aside. 

Sutherland,  J.^^  The  principal  question  in  this  case  is,  whether 
the   plaintiff   can    recover    under   the   common  money    counts.      The 

iG  l*-rt  of  the  opiuiou  omitted. 


I 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  2()-'> 

original  contract  between  the  parties  was  special,  and  the  defendant 
contends  ought  to  have  been  declared  on;  and  such  appears  to  have 
been  the  opinion  of  this  court  when  the  case  was  formerly  before  it 
(3  Wend.  269).  The  distinction  between  an  executed  and  an  exec- 
utory contract,  does  not  appear  to  have  been  on  that  occasion  suffi- 
ciently considered.  As  long  as  a  special  contract  remains  in  force, 
neither  performed  nor  rescinded,  no  recovery  can  be  had  under  the 
general  counts  for  any  service  performed  under  it ;  the  action  must 
be  upon  the  contract  itself  (Clark  v.  Smith,  14  Johns.  326;  Wood  v. 
Edwards,   19  Johns.  205).     But  where  the   contract  has  been  fully 

performed^ and   nothing    remams   to    be    3one   but    the    payment  _of_ 

money,  the  common  rniinEZaf^ -jfrH^^fe^f  is  nere.ssary:-J-.a  4ttS€ft  4n — ■ 
the  declaraticm;  the  special  .agreement  need  not  be  noticed  in  -  th€ — 
pleading.  Soalso,  if  the,  ^peoaL -agreement  has  been  abandoned  by 
"tTie  defendant,  or  the_plaintiff  has^bfigiMirev^ated-  from  performing — 
J^by  tHe  act  of  the  defendant,  or  has  performed  it  substantially,  bul_ 
not  in  strict  conformity  with  the  _agreement,  he  may  recover  under 
the  common  counts  for  the  labor -or  services  act iiaUy  rendered^  In- 
numerable cases  might  be  cited  in  sirppotT^of  these  positions.  Bull. 
N.  P.  139,  140;  Cooke  v.  Munsline,  4  Bos.  &  Pull.  354;  Tuttle  v. 
Mayo,  7  Johns.  132;  Linningdale  v.  Livingston,  10  Johns.  36;  Ray- 
mond V.  Bearnard,  12  Johns.  274,  7  Am.  Dec.  317;  Wilt  v.  Ogden, 
13  Johns.  56;  Jennings  v.  Camp,  13  Johns.  94,  7  Am.  Dec.  367; 
Ketchum  v.  Evertson,  13  Johns.  359,  7  Am.  Dec.  384;  Clark  v. 
Smith,  14  Johns.  326;  Champlin  v.  Butler,  18  Johns.  169;  Richard- 
son V.  Smith,  8  Johns.  439;  Jewell  v,  Schroeppel,  4  Cow.  564;  2 
Saund.  350,  note  2;  Str.  648;  2  T.  R.  105;  6  Taunt.  322;  1  Holt, 
236;  3  Com.  Law  R.  85 ;  2  Phil.  Ev.  83,  note  a.  The  supreme 
court  of  the  United  States,  in  Bank  of  Columbia  v.  Patterson's  Adm'r, 
7  Cranch,  303,  3  L.  Ed.  351,  say:  "We  take  it  to  be  incontrovertibly 
settled  that  indebitatus  assumpsit  will  lie  to  recover  the  stipulated 
price  due  on  a  special  contract  not  under  seal,  where  the  contract 
has  been  completely  executed,  and  that  it  is  not  in  such  case  necessary 
to  declare  upon  the  special  agreement."  The  case  of  Hesketh  v.  Blan- 
chard  and  Another,  Executors  of  Robertson,  4  East,  144,  strongly 
resembles  in  its  circumstances  the  case  at  bar,  and  shows  conclu- 
sively that  the  general  counts  are  sufficient  in  a  case  like  this.  The 
marginal  note,  which  states  the  case  correctly,  is  as  follows :  A. 
having  neither  money  nor  credit,  offers  to  B.  that  if  he  will  order 
with  him  certain  goods  to  be  shipped  upon  an  adventure,  if  any  profit 
should  arise  from  them,  B.  should  have  half  for  his  trouble.  B. 
having  lent  his  credit  on  this  contract,  and  ordered  the  goods  on 
their  joint  account,  which  were  furnished  accordingly,  and  afterwards 
paid  for  by  B.  alone,  it  was  held  that  B.  was  entitled  to  recover  back 
such  payment  in  assumpsit  against  A.,  who  had  failed  to  account  to 
him  for  the  profits.    It  was  also  held,  that,  as  between  themselves,  such 

WHIT.C.L.PL.— 18 


264  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

contract  did  not  constitute  them  partners — having  a  bearing  in  this 
respect  also  upon  another  point  in  this  case.  The  declaration  here 
contained  nothing  but  the  general  counts,  and  no  objection  appears 
to  have  been  raised  to  it  on  that  ground.  It  was  conceded  to  be  suffi- 
cient. The  principal  contract  was  considered  as  abandoned  or  re- 
scinded by  the  defendant,  leaving  him  liable  to  the  plaintiff  as  for 
goods  sold  and  delivered  to  him.  Here  the  special  agreement,  instead 
of  being  abandoned  or  rescinded,  has  been  fully  performed  in  all  its 
parts,  according  to  the  original  contemplation  of  the  parties.  The 
cotton  has  been  sent  to  the  port,  and  consigned  to  the  house  agreed 
upon ;  it  has  been  sold  according  to  order,  and  an  account  of  sales 
returned  to  the  plaintiff,  showing  a  loss  upon  the  defendant's  inter- 
est in  the  adventure  of  360  odd  dollars.  Nothing  remains  to  be  done 
but  the  payment  of  this  balance. 

The  action  may  be  considered  as  either  brought  for  this  balance, 
or  for  the  original  advance  made  by  the  plaintiff  to  the  defendant  for 
his  share  of  the  cotton,  and  which  advance  was  to  be  repaid  at  the 
termination  and  close  of  the  adventure.  In  either  point  of  view,  I 
think  the  common  counts,  upon  the  principles  and  authorities  referred 
to,  are  all  that  the  plaintiff's  case  required. 

This  was  not  a  partnership  transaction,  as  between  the  plaintiff 
and  defendant;  however  it  might  be  as  between  them  and  third  per- 
sons. It  was  a  mode  agreed  upon,  by  which  the  defendant  sold 
absolutely  -to  the  plaintiff  one  half  of  his  cotton,  and  obtained  an 
advance  from  him  to  the  full  value  of  the  other  half.  The  cotton 
was  to  be  consigned  by  the  plaintiff  to  his  correspondents  at  Havre, 
to  be  disposed  of  by  them,  and  the  proceeds  to  be  remitted  to  the 
plaintiff',  out  of  the  defendant's  share  of  which  the  plaintiff  was  to 
pay  himself  for  his  advances,  if  it  proved  sufficient.  It  was  a  special 
mode  of  payment  agreed  upon  between  the  parties.  Each  of  the  par- 
ties had  his  own  particular  views  and  expectations  of  advantage  from 
the  arrangement.  But  I  am  persuaded  it  would  be  doing  great  violence 
to  their  intention,  to  hold  them  to  have  been  partners  in  the  trans- 
action, and  to  attach  to  it  all  the  consequences  of  that  relation.  The 
case  of  Hesketh  v.  Blanchard,  4  East,  144,  already  referred  to,  has  a 
strong  bearing  on  this  point;   vide  also  Venning  v.  Leckie,  13  East, 

tT  ^         >(C         3j;  .  , 

New  trial  denied.^'' 

17  Masters  v.  Marriott,  3  Lev.  3G3  (1G94)^  Edwards  v.  Holding,  5  Taunt. 
815  (1814:  point  not  raised);  Hopper  v.  Eiland,  21  Ala.  714  (1852)  semble; 
Farson  v.  Hutchius,  62  111.  App.  439  (1896);  Leach  v.  Alpbons  Custodis  Cbim- 
nev  Const.  Co.,  110  111.  App.  338  (1903) ;  PMppen  v.  Morehouse,  50  Mich.  537, 
15  N.  W.  895  (1883) ;  White  v.  Taylor,  113  Mich.  543,  71  N.  W.  871  (1897). 
Accord. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  265 

EXPANDED  METAL  FIREPROOFING  CO.  v.  BOYCE. 

(Supreme  Court  of  Illinois,  1908.    233  111.  2S4,  84  N.  E.  275.) 

Appeal  from  Branch  Appellate  Court,  First  District,  on  Appeal  from 
Circuit  Court,  Cook  County ;  Charles  A.  Bishop,  Judge. 

Action  by  the  Expanded  Metal  Fireproofing  Company  against  W. 
D.  Boyce.  From  a  judgment  of  the  Appellate  Court  affirming  a 
judgment  for  the  plaintiff,  defendant  appeals.    Reversed. 

This  is  an  action  in  assumpsit  brought  by  appellee  in  the  circuit 
court  of  Cook  county,  against  appellant,  to  recover  for  work  and 
labor  performed  and  materials  furnished  in  and  about  the  construc- 
tion of  certain  expanded  metal  and  concrete  floors  and  roofs  in  a 
paper  mill  of  appellant  at  Marseilles,  111.,  in  1902,  and  for  the  use  and 
hire  of  a  certain  engine  and  mixer.  The  case  was  tried  on  a  dec- 
laration consisting  only  of  the  common  counts,  to  which  the  general 
issue  was  pleaded.  On  the  trial  the  jury  found  the  issues  for  the 
plaintiff,  and  assessed  its  damages  at  $4,418.75,  and  also  returned 
special  findings  that  the  work  was  done  in  a  good  and  workmanlike 
manner  and  the  materials  furnished  were  in  accordance  with  the  pro- 
visions of  the  contract.  The  plaintiff  remitted  the  sum  of  $111.27, 
and  judgment  was  entered  for  $4,307.48.  On  appeal  to  the  Appellate 
Court  the  judgment  was  affirmed,  and  the  case  is  brought  here  for 
review. 

The  written  contract  upon  which  this  action  was  based  is  dated 
January  18,  1902.  Drawings  and  specifications  for  the  work  were 
made  a  part  by  reference.  Article  1  of  the  contract  provided  that 
"the  contractor,  under  the  direction  and  to  the  satisfaction  of  N.  F. 
Ambursen,  architect,  acting  for  the  purposes  of  this  contract  as  agent 
of  the  said  owner,  shall  and  will  provide  all  materials  and  perform 
all  the  work  mentioned  in  the  specifications  and  shown  on  the  draw- 
ings prepared  by  the  said  architect,"  etc.  Article  3  provided  that  no 
alterations  should  be  made  in  the  work  as  shown  in  the  drawings  and 
specifications,  except  upon  the  written  order  of  the  architect,  "and 
when  so  made  the  value  of  the  work  added  or  omitted  shall  be  com- 
puted by  the  architects,  and  the  amount  so  ascertained  shall  be  added 
or  deducted  from  the  contract  price,"  with  the  further  provision  that 
if  there  was  dissent  to  the  architect's  finding  the  question  might  be 
left  to  three  disinterested  arbitrators  to  decide.  Article  4  provided 
that  if  the  architect  found  fault  with  the  v/ork  and  gave  a  written 
notice  the  contractor  should  remedy  the  defects.  Article  9  provided 
that  the  payments  should  be  made  to  the  contractor  for  85  per  cent, 
of  the  contract  price  as  the  work  progressed,  and  final  payment  be 
made  within  30  days  after  the  contract  was  fulfilled ;  that  "all  payments 
shall  be  made  upon  the  written  certificate  of  the  architects  to  the  effect 
that  such  payments  have  become  due,"  with  the  added  provision  that 
the  owner  might  retain  out  of  such  payments  sufficient  to  indemnify 


266  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

himself  against  liens  or  claims  against  the  contractor.  Article  10 
provided  "that  no  certificate  given  or  payment  made  under  this  con- 
tract, except  the  final  certificate  or  final  payment,  shall  be  conclusive 
evidence  of  the  performance  of  this  contract,  either  wholly  or  in  part, 
and  that  no  payment  shall  be  construed  to  be  an  acceptance  of  de- 
fective work  or  improper  materials."  The  contract  price  of  the  work 
was  $8,600. 

Carter,  J.  (after  stating  the  facts  as  above). ^®  On  the  trial  of  the 
case  in  the  circuit  court  a  certificate  signed  by  architect  Ambursen 
was  offered  in  evidence  by  appellee.  There  is  evidence  in  the  record 
tending  to  show  that  the  architect  had  little,  if  anything,  to  do  with 
the  work  in  question  during  its  progress,  and  it  is  claimed  by  appel- 
lee that  the  architect  had  been  discharged  by  the  appellant  before  the 
work  was  performed,  but  we  find  no  positive  evidence  in  the  record 
of  this  latter  fact.  At  the  time  the  certificate  was  obtained  it  appears 
that  the  architect  was  residing  in  Watertown,  N.  Y.,  and  arrangements 
were  made  with  him  by  appellee  to  come  out  to  Marseilles,  ex- 
amine the  work,  and  give  his  certificate.  Under  the  evidence  relat- 
ing to  the  securing  of  this  certificate  the  trial  court  excluded  it,  and 
the  Appellate  Court  held  that  ruling  proper.  It  is  earnestly  contended 
by  appellee  in  this  court  that  both  the  trial  and  appellate  courts  erred 
in  this  regard.  As  appellee  has  not  assigned  cross-errors,  the  error, 
if  any,  in  this  regard  cannot  be  raised  in  this  court. 

Manifestly,  appellee  was  bound  to  procure  the  certificate  of  the 
architect  showing  the  performance  of  the  work  as  provided  in  the 
contract  and  the  amount  due  under  it,  or  show  an  excuse  for  not  so 
doing.  The  chief  contention  is  that,  after  this  certificate  was  ex- 
cluded, the  court  erred  in  permitting  appellee  to  prove,  under  the  com- 
mon counts,  that  there  had  been  substantial  compliance  with  the 
provisions  of  the  contract  as  to  carrying  out  the  contract  and  com- 
pleting the  work.  We  held  in  Hart  v.  Carsley  Manf.  Co.,  221  111. 
444,  77  N.  E.  897,  112  Am.  St.  Rep.  189,  that  if  the  architect's  cer- 
tificate in  a  building  contract  has  not  been  obtained  as  therein  required, 
showing  the  amount  due,  a  recovery  cannot  be  had  upon  the  common 
counts ;  that  a  recovery  must  be  had  on  the  declaration,  setting  up 
the  contract,  the  performance  as  to  furnishing  materials  and  doing 
the  work,  and  stating  the  reason  why  the  certificate  had  not  been  ob- 
tained. In  City  of  Peoria  v.  Construction  Co.,  169  111.  36,  48  N.  E. 
435,  we  held  that  "when  work  is  done  under  a  contract,  *  *  * 
plaintiff  can  only  recover  therefor  when  he  has  fully  or  substantially 
performed  the  conditions  precedent  to  his  right  of  recovery  as  stated 
in  the  contract,  or  else  averred  and  proved  a  sufficient  excuse  for  his 
noncompliance  with  its  conditions."  In  Chitty  on  Pleadings  (volume 
1,  14th  Am.  Ed.,  star  page  325)  it  is  stated  that,  "where  the  matter 
to  be  performed  is  a  condition  precedent,  the  performance  of  that  mat- 
is  Part  of  the  opinion  is  omitted. 


Ch.  1)  SPECIAL   AND    GENERAL   (INDEBITATUS)    ASSUMPSIT  267 

ter  must  be  shown,  although  a  third  person  was  to  do  the  act  and  he 
unreasonably  refuse  his  concurrence."  The  same  author  in  the  same 
volume  (star  page  326)  lays  down  the  rule  that,  in  averring  an  excuse 
for  nonperformance,  plaintiff  must  state  his  readiness  to  perform  the 
act  and  the  particular  circumstances  which  constitute  such  excuse; 
that,  in  stating  an  excuse  for  nonperformance  of  a  condition  preced- 
ent, plaintiff  must,  in  general,  show  that  the  defendant  either  pre- 
vented the  performance  or  rendered  it  unnecessary  by  his  neglect  or 
by  discharging  the  plaintiff  from  performance. 

In  all  cases  where,  under  the  contract,  something  is  to  be  done  by 
the  plaintiff  or  some  other  person,  precedent  to  performance  by  the 
defendant,  the  plaintiff  must  allege  performance  of  such  condition 
precedent  or  show  some  excuse  for  the  nonperformance.  2  Ency.  of 
PI.  &  Pr.  p.  999,  and  cases  cited;  Gould's  PI.  (5tH  Ed.)  p.  67. 
When  a  building  contract  provides  for  an  architect's  certificate,  such 
provision  is  a  condition  precedent  to  a  right  of  recovery,  and  the 
excuse  for  the  nonproduction  of  such  certificate  must  be  alleged  and 
proved.    4  Ency.  of  PI.  &  Pr.  643,  and  cases  there  cited. 

It  has  been  frequently  held  by  this  court  that  where  a  contract 
has  been  performed,  and  it  only  remains  for  the  contract  price  for 
labor  or  property  to  be  paid,  plaintiff  may  sue  and  recover  under  the 
common  counts,  and  the  special  agreement  may  be  read  in  evidence  for 
the  purpose  of  showing  its  terms  to  recover  damages.  Concord  Apart- 
ment House  Co.  V.  O'Brien,  228  111.  360,  81  N.  E.  1038;  City  of  Chi- 
cago V.  Chicago  &  Northwestern  Railway  Co.,  186  111.  300,  57  N.  E. 
795;  Parmly  v.  Farrar,  169  111. -606,  48  N.  E.  693.  It  is  therefore  in- 
sisted by  appellee  that,  as  the  evidence  showed  that  the  architect's  cer- 
tificate was  waived  by  the  parties,  recovery  could  be  had  under  the 
common  counts  without  an  averment  in  the  declaration  of  the  waiver, 
if  the  evidence  also  showed  that  the  contract  was  performed  and  noth- 
ing remained  to  be  done  but  to  pay  the  amount  due — citing,  in  sup- 
port of  this  contention,  Foster  v.  McKeown,  192  111.  339,  61  N.  E.  514; 
Evans  V.  Howell,  211  111.  85,  71  N.  E.  854;  Chicago  &  Eastern  Illi- 
nois Railroad  Co.  v.  Moran,  187  111.  316,  58  N.  E.  335;  Shepard  v. 
Mills,  173  111.  223,  50  N.  E.  709;  Keeler  v.  Herr,  157  111.  57,  41  N. 
E.  750;  Continental  Life  Ins.  Co.  v.  Rogers,  119  111.  474.  10  N.  E. 
242,  59  Am.  Rep.  810;  German  Fire  Ins.  Co.  v.  Grunert,  112  111.  68. 
1  N.  E.  113.  An  examination  of  these  cases  will  show  that  in  the 
majority  of  them  the  question  of  proving  ^  waiver  under  the  com- 
mon counts  without  specially  pleading  it  was  not  an  issue.  In  some  of 
them  the  rule  is  laid  down  that,  when  a  contract  has  been  performed 
and  nothing  remains  to  be  done  but  to  pay  the  amount,  recovery  could 
be  had  under  the  common  counts,  and,  while  there  are  some  general 
statements  in  certain  of  these  decisions  that  tend  to  unhold  the  con- 
tention of  appellee  on  this  question,  Foster  v.  McKeowai,  supra, 
is  the  only  one  which  holds  that,  when  a  building  contract  has  been 
substantially  performed,  an  excuse  for  failure  to  procure,  as  required. 


268  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

the  architect's  certificate,  may  be  shown  under  the  common  counts. 
We  refused  to  follow  this  case  as  an  authority  on  this  question  in 
Hart  V.  Carsley  Manf.  Co.,  supra,  stating  that  it  was  not  in  accord 
with  the  weight  of  authority. 

Counsel  for  appellee  in  this  case  insist  that  there  is  a  distinction 
between  waiver  and  excuse;  that  an  excuse  for  nonperformance  is 
one-sided,  while  a  waiver  is  two-sided  and  must  be  participated  in  by 
both  parties.  It  is  very  clear  from  the  authorities  heretofore  cited 
that  this  distinction  is  not  valid.  In  the  Encyclopedia  of  Pleading  & 
Practice  (volume  4,  p,  631)  it  is  stated,  in  discussing  this  subject, 
that  if  the  plaintiff  intends  to  rely  on  facts  which  show  a  waiver  of 
performance  by  the  defendant  he  must  plead  such  facts;  that  he  can- 
not plead  performance  and  recover  under  proof  of  waiver  of  per- 
formance.   See,  also,  page  644  of  same  volume,  and  authorities  cited. 

We  think  it  is  clear,  by  the  greit  weight  of  authority  in  this  and 
other  jurisdictions,  that,  if  the  architect's  certificate  is  not  obtained, 
recovery  can  only  be  had  on  a  declaration  setting  up  the  contract 
and  stating  the  reason  for  failure  to  comply  with  the  condition  pre- 
cedent requiring  the  furnishing  of  an  architect's  certificate.  More- 
over, we  are  of  the  opinion  that  there  is  no  proof  in  this  record  that 
would  justify  the  conclusion  that  appellant  had  waived  the  procuring 
of  the  architect's  certificate  in  question.  It  is  claimed  that  this  was 
waived  because  partial  payments  were  made  from  time  to  time,  under 
said  article  9  of  the  contract,  without  the  architect's  certificate,  as 
required  thereby.  It  is  not  claimed,  however,  that  more  than  85  per 
cent,  was  paid,  and  so  far  as  we  can  find  there  is  nothing  in  the  rec- 
ord to  indicate  that  the  provision  of  article  10  as  to  the  final  certificate 
was  waived  in  any  manner  by  the  appellant.  This  being  true,  under 
none  of  the  authorities  cited  would  appellee  be  permitted  to  make 
proof  under  the  common  counts  that  the  contract  had  been  substantially 
performed.     *     *     * 

For  the  errors  indicated  in  permitting  the  introduction  of  the  proof 
in  question  under  the  common  counts,  the  judgments  of  the  cir- 
cuit court  and  Appellate  Court  will  be  reversed,  and  the  cause  will 
be  remanded  to  the  circuit  court  for  further  proceedings  consistent 
with  the  views  herein  expressed. 

Reversed  and  remanded.^ ^ 


19  City  V.  Construction  Co.,  1G9  111.  36,  48  N.  E.  435  (1S97);  Parmly  v. 
Farrar,  169  111.  606,  48  N.  E.  693  (1897) ;  Carson  v.  Allen,  6  Dana  (Ky.)  395 
(1838).  xVccord.  Mertens  v,  Adcock,  4  Esp.  251  (1803);  Fowler  v.  Deakmau, 
84  111,  130  (1876);  Foster  v.  McKeown,  192  111.  345.  61  N.  E.  514  (1901); 
Rubens  v.  Hill,  213  III.  523,  536,  72  N.  E.  1127  (1904)  semble;  Zapel  v.  Ennis, 
104  111.  App.  175  (1902);  Snow  v.  Ware,  13  Mete.  (Mass.)  42  (1847);  Crane 
Co.  V.  Clark,  80  Fed.  705,  26  C.  C.  A.  100  (1897);  Columbus  Co,  v.  Burke,  88 
Fed.  630,  32  C.  C.  A,  67  (1S98)  semble.  Contra. 

In  the  following  cases,  thus  differing  from  those  in  the  preceding  para- 
graph, the  excuse  for  breach  of  the  condition  was  prevention  by  the  de- 
fendant.   It  was  held  that  the  common  counts  would  not  suffice  in:   Hulle  v. 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)   ASSUMPSIT  2G9 

KNIGHT  V.  NEW  ENGLAND  WORSTED   CO. 

(Supreme  Judicial  Court  of  Massachusetts,  1S48.    2  Cusli.  271.) 

In  an  action  of  indebitatus  assumpsit,  for  goods  sold  and  delivered, 
the  plaintiff  introduced  in  evidence  a  vi^ritten  memorandum,  signed 
by  the  defendants,  from  which  it  appeared,  that  the  defendants  were 
to  take  the  plaintiff's  leasehold  premises  and  machinery,  at  a  certain 
stipulated  rent,  and  upon  other  terms  stated  in  the  memorandum,  and 
the  stock  therein,  consisting  of  unfinished  carpets,  yarn,  etc.,  at  cer- 
tain stipulated  prices;  that  the  plaintiff  should  not,  during  the  time 
of  the  lease,  engage  directly  or  indirectly  in  the  manufacture  of  any 
such  carpeting  as  he  was  then  engaged  in  making ;  that  the  defendants 
should  take  possession  on  the  1st  of  March;  and  that  all  carpets  in 
the  looms  should  be  taken  at  the  estimate  for  yarns,  adding  for  scour- 
ing, coloring  and  weaving.  The  plaintiff  also  introduced  parol  evidence 
to  show,  that  he  had  mills  where,  he  manufactured  carpets,  and  the 
defendants  had  mills  near  his,  where  they  manufactured  yarns;  that 
on  the  1st  of  March,  1847,  and  the  following  days,  two  persons  on  the 
part  of  the  plaintiff,  and  two  on  the  part  of  the  defendants,  were  em- 

Heightman,  2  East,  145  (1802);  Jonas  v.  King,  SI  Ala.  2S5,  1  South.  591 
(1886);  Hurlock  v.  Murphy,  2  Houst.  (Del.)  550  (1863);  Pariuly  v,  Farrar, 
169  111.  606,  48  N.  E.  693  (1897);  Watkins  v.  Hodges,  6  Har.  &  J.  (Md.)  38 
(182.3);  Consolidation  Co.  v.  Shannon,  34  Md.  144  (1871);  Beecher  v.  Pettee, 
40  Mich.  181  (1879).  Contra  are:  Studdy  v.  Sanders,  5  B.  &  C.  628  (1826); 
Rohde  V.  Thwaites,  6  B.  &  C.  388  (1827);  Blanche  v.  Colburn,  8  Bing.  14 
(1831);  Hall  v.  Cannon,  4  Har.  (Del.)  360  (1846);  Rubens  v.  Hill,  213  111. 
523,  537,  72  N.  E.  1127  (1904)  semble;  Myer  v.  Frenkil,  113  Md.  36,  45,  77 
Atl.  369  (1910)  semble;  Moultou  v.  Trask,  9  Mete.  (Mass.)  577  (1845);  Hos- 
mer  v.  Wilson,  7  Mich.  294,  300,  74  Am.  Dec.  716  (1859)  semble;  Mooney  v. 
York  Iron  Co.,  82  Mich.  263,  46  N.  W.  376  (1890);  Clark  v.  Fairchild.  22 
Wend.  (N.  Y.)  576,  581  (1840);  Stoll  v.  Ryan,  3  Brev.  (S.  C.)  238  (1812)  semble; 
Perkins  v.  Hart,  11  Wheat.  237,  250,  6  L.  Ed.  463  (1826),  semble. 

When  the  plaintiff  has  performed  with  insubstantial  defects  he  can  use 
the  common  counts.  Hancock  v.  Ross,  18  Ga.  364  (1855);  Walsh  v.  Jeuvey, 
85  Md.  240,  36  Atl.  817,  38  Atl.  938  (1897). 

When,  despite  partial  breach,  the  plaintiff  can  recover  as  if  he  had  fully 
performed,  the  common  counts  lie.  Gandell  v.  Pontiguy,  4  Camp.  375  (1816) ; 
Sykes  v.  Summerel,  2  Browne  (Pa.)  225  (1812).  But  see,  contra,  Archard  v. 
Horner,  3  C.  &  P.  349  (1828);   Smith  v.  Hay  ward,  7  A.  &  E.  544  (1837),  semble. 

The  plaintiff  cannot  recover  for  what  he  has  performed  by  the  common 
counts  and  for  damages  as  to  the  future  by  a  special  count.  Bishop  v.  Chi- 
cago, 62  111.  188  (1871);  Beecher  v.  Pettee,  40  Mich.  181  (1879).  But  see, 
contra,  Leslie  v.  Joliet  Bridge  &  Iron  Co.,  149  111.  App.  210  (1909). 

If  the  defendant  totally  prevents  the  plaintiff  from  performing,  the  latter 
must  use  a  special  count.  Hagedorn  v.  Laing,  6  Taunt.  166  (1815)  semble : 
Atkinson  v.  Bell,  8  B.  &  C.  277  (1828);  Truitt  V.  Fahey,  3  Pennewill  (Del.) 
573,  52  Atl.  339  (1902);  Hunueman  v.  Grafton,  10  Mete.  (Mass.)  454  (1845): 
Stearns  v.  Washburn,  7  Gray  (Mass.)  187  (1856);  Loranger  v.  Davidson,  110 
Mich.  005,  68  N.  W.  426  (1896);  Trenton  City  Bridge  Co.  v.  Perdicaris,  29 
N.  J.  Law,  367  (1862). 

If  the  plaintiff  has  performed  fully  according  to  the  contract  as  modified, 
the  common  counts  are  suthcient.  Prince  v.  Thomas,  15  Ark.  378  (1854); 
Petersen  v.  Pusey,  237  111.  204,  86  N.  E.  692  (1908);  B.  &  O.  R.  R.  v.  Lafferty, 
2  W.  Va.  104,  115  (1807). 


270  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

ployed  in  taking  an  account  of  the  stock  in  the  plaintiff's  mills,  and  in 
making  a  schedule  thereof,  which,  when  examined  by  the  defendants' 
superintendent  and  found  to  be  correct,  was  sent  to  the  defendants 
about  the  17th  of  March;  that  the  defendants,  between  the  10th  and 
17th  of  March,  took  possession  of  the  plaintiff's  mills,  and  proceeded 
to  work  in  two  of  them,  and  shut  up  and  locked  and  took  the  key 
of  the  third;  that  the  superintendent  and  workmen,  who  were  previ- 
ously employed  by  the  plaintiff,  were  employed  and  paid  by  the  de- 
fendants, after  they  so  took  possession;  that  carpets  were  made  in  ^ 
the  mills  by  the  defendants,  from  materials  taken  by  them  of  the  M 
plaintiff,  and  were  sold  by  the  defendants  on  their  own  account;  that  ^', 
a  quantity  of  wool,  included  in  the  schedule,  which  had  been  previously 
purchased  by  the  plaintiff,  but  had  not  been  removed  by  him  to 
his  mills,  was  sent  to  the  defendants  and  used  by  them;  and  that  on 
the  20th  of  March,  the  two  mills  which  the  defendants  were  so  occu- 
pying, with  some  of  the  stock  therein,  were  destroyed  by  fire. 

Shaw,  C.  J.^°  This  is  an  action  for  goods  sold  and  delivered,  and 
the  questions  arising  in  it  are  the  more  important  on  account  of  the 
large  amount  of  property  involved.  A  circumstance,  which  renders 
the  case  the  more  complicated  and  gives  it  the  deeper  interest,  is, 
that  a  considerable  part  of  the  goods  in  controversy  were  destroyed  by 
fire.  If  the  property  had  then  vested  in  the  defendants,  the  risk  and 
consequent  loss  were  upon  them;  otherwise,  the  risk  and  loss  were 
the  plaintiff's.     *     *     * 

Here,  it  appears  to  us,  the  facts  being  satisfactorily  proved,  are 
all  the  elements  prima  facie  of  a  complete  sale  and  delivery  of  the 
stock,  consisting  of  unfinished  carpets  in  the  loom,  and  of  the  yarn 
and  wool.  The  stipulation  was  for  the  whole  stock,  described  in 
general  terms,  at  certain  agreed  rates;  and  when  the  account  and 
inventory  were  completed,  stating  the  quantities  of  each,  and  the 
agreed  prices  were  applied,  the  amount  of  the  whole  purchase  was 
ascertained;  and  this  schedule,  being  sent  to  and  accepted  by  the  de- 
fendant's agents,  was  evidence  upon  that  point.  As  to  delivery,  it 
is  a  familiar  rule,  that  where  there  is  a  contract  for  the  sale  of  per- 
sonal property,  delivery  of  the  possession  of  the  store  or  warehouse, 
where  it  is  deposited,  is  a  good  delivery  to  complete  the  contract  and 
vest  the  property  in  the  vendee.  Tarling  v.  Baxter,  6  B.  &  Cr.  360. 
Besides,  the  fact,  that  the  defendants  took  actual  possession  of  the 
stock  and  disposed  of  a  considerable  part  of  it  on  their  own  account, 
is  quite  conclusive  on  the  subject  of  delivery. 

The  defendants,  however,  took  a  different  view  of  the  subject;  and, 
when  the  plaintiff's  evidence  was  in,  moved  the  court  to  order  a  non- 
suit, or  to  instruct  the  jury,  that  the  action  could  not  be  maintained. 
The   grounds   taken   were,    that   the   memorandum    was   one   entire 

2  0  The  statement  of  facts  is  taken  from  the  headnote,  and  portions  of  the 
opinion  are  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  271 

agreement ;  that  the  goods  having  been  put  into  the  possession  of  the 
defendants,  subsequently  to  an  entire  agreement,  it  was  incumbent  on 
the  plaintiff  to  prove  performance,  or  a  tender  of  performance,  on 
his  part,  of  such  entire  agreement ;  or  a  waiver  and  abandonnicnt 
thereof  and  delivery  on  an  independent  and  subsequent  agreement. 
The  court  declined  so  to  instruct  the  jury,  but  instructed  them,  that 
the  contract  was  divisible,  and  that  they  need  have  no  reference  to  the 
lease  or  to  the  real  estate. 

As  we  understand  the  argument,  this  objection  divides  itself  into 
two  distinct  propositions:  1.  That  the  plaintiff  cannot  recover,  with- 
out setting  out  the  entire  agreement,  and  averring  and  proving  per- 
formance or  tender  on  his  part;^^  2.  That  he  cannot  recover  on  a 
.general  count,  as  for  goods  sold  and  delivered,  but  must  set  out  the 
acts  done  under  it,  and  hence  establish  the  obligation  of  the  defendants 
to  make  payment.     *     *     * 

II.  The  next  ground  taken  was,  that  even  if  this  stipulation  in 
the  contract  was  independent,  it. was  yet  part  of  one  entire  contract, 
and  that  the  plaintiff  could  not  recover  on  a  count  in  indebitatus 
assumpsit  for  goods  sold  and  delivered,  but  should  have  set  out  the 
special  contract,  and  have  alleged  the  existence  of  such  facts  as  would 
render  the  defendants  liable. 

,  The  general  rule  is,  that  notwithstanding  goods  have  been  sold 
under  a  special  agreement,  yet  if  the  agreement  has  been  executed, 
and  all  the  terms  and  conditions  complied  with,  it  has  ceased  to  be 
executory,  and  has  resulted  in  a  debt,  or  duty  to  pay  money,  and 
therefore  the  vendor  may  recover  thereon,  in  a  count  in  indebitatus 
assumpsit.  If  the  facts  are  not  such  as  to  prove  that  the  defendant  is 
indebted  for  the  goods,  then  the  contract  is  executory,  and  the  plain- 
tiff must  set  it  out  specially  and  truly,  with  the  terms  and  conditions, 
and  allege  performance  on  his  part.  Felton  v.  Dickinson,  10  Mass. 
287;   Baker  v.  Corey,  19  Pick.  496. 

Nor  are  we  aware  of  any  dift'erence  between  the  case,  where  the 
contract  for  the  sale  of  goods  is  single  and  disconnected  with  other 
stipulations,  and  where  it  is  a  separate  and  independent  stipulation,  em- 
braced in  the  same  contract  with  other  stipulations,  on  either  or  both 
sides.  The  principle  is  the  same;  that  which  was  an  executory  un- 
dertaking, has  been  executed  and  become  a  debt  alike  in  both  cases. 
And  it  appears  to  us,  that  the  case  is  not  without  authority.  May- 
field  V.  \^^adsley,  3  B.  &  Cr.  357.  Where  an  outgoing  tenant  had 
agreed  with  an  incoming  tenant,  to  take  the  crop  of  wheat  growing 
on  forty  acres,  at  a  fixed  price,  and  also  to  purchase  certain  dead 
stock  and  a  machine  on  the  farm,  at  a  valuation-of  a  tliird  person,  which 
valuation  was  made  accordingly,  there  was  some  difference  of  opinion 
among  the  judges,  whether  the  plaintiff  could  recover  in  indebitatus 

21  The  court  held  that  the  completion  of  the  lease  was  not  a  condition  pre- 
cedent to  the  deleudaut's  obligation  to  pay  for  the  j'arn  and  other  goods. 


1 


272  PLEADINGS  IN  CONTRACT  ACTIONS  (Part  2 

assumpsit  for  the  growing  crops,  on  the  ground,  that  being  part  of 
tlie  realty,  the  contract  in  relation  thereto  was  contrary  to  the  stat- 
ute of  frauds,  but  a  majority  of  the  court  held,  that  he  could  recover 
for  the  whole,  and  all  the  judges  agreed,  that  for  the  dead  stock, 
which  was  to  be  taken  at  a  valuation,  indebitatus  assumpsit  would  lie. 
See  also  Stone  v.  Rogers,  2  Mees.  &  Wels.  443. 

The  true  rule  seems  to  be,  as  laid  down  in  a  recent  case  in  this  com- 
monwealth, that  if  one  contract  to  do  several  things,  at  several  times, 
an  action  of  assumpsit  will  lie  on  each  default;  for,  although  the 
agreement  is  entire,  the  performance  is  several,  and  the  contract  di- 
visible in  its  nature.  Badger  v.  Titcomb,  15  Pick.  409,  26  Am.  Dec. 
611.  In  this  case,  Mr.  Justice  Wilde  traces  back  the  rules  of  the 
common  law  upon  this  subject  to  an  ancient  period,  when  it  was 
held,  that  but  one  action  of  debt  would  lie  upon  one  contract;  and 
points  out  the  distinction  between  the  actions  of  debt  and  assumpsit, 
the  latter  of  which,  in  form  and  theory,  is  an  action  on  tort,  claiming 
damages  for  the  violation  of  a  promise;  and  he  cites  the  authorities, 
on  which  the  law  has  now  finally  settled  down  upon  the  more  rea- 
sonable and  equitable  principle,  that  for  each  separate  and  distinct 
breach  of  a  contract  to  do  several  things,  an  action  will  lie.  And  it 
appears,  that  this  distinction  between  debt  and  assumpsit  is  not  now 
regarded  in  England.  By  a  recent  English  case,  very  like  the  present, 
it  was  held,  that  debt  would  lie  for  goods  sold  and  delivered,  on  a 
separate  and  independent  stipulation,  to  purchase  and  pay  for  goods, 
contained  among  several  other  mutual  stipulations,  in  an  agreement 
for  a  lease.    Stone  v.  Rogers,  2  Mees.  &  Wels.  443. 

The  court  are  therefore  of  opinion,  that  the  direction  of  the  judge 
was  right,  in  refusing  to  order  a  nonsuit  when  the  plaintiff  rested 
his  case,  and  in  instructing  the  jury,  that  the  contract  was  divisible,  so 
far  as  performance  and  the  right  to  recover  for  non-performance  were 
concerned;  and  that  the  jury  need  have  no  reference  to  the  lease  or 
to  the  real  estate,  nothing  being  to  be  done  by  the  plaintiff  respecting 
them,  as  a  condition  precedent  to  his  right  to  maintain  this  action 
for  the  breach  assigned.     *     *     * 

Judgment  on  the  verdict.^^ 

2  2  Dees  V.  Self  Bros.,  165  Ala.  22.5,  51  South.  735  (1910);  Leslie  v.  Joliet 
Bvidsje  &  Iron  Co.,  149  111.  App.  210  (1909) ;  Rogers  v.  Brown,  103  Me.  478, 
70  Atl.  206  (1908)  semble;  Perkins  v.  Hart,  11  Wheat.  (U.  S.)  237,  250,  6  L. 
Ed.  463  (1826)  semble.  Accord.  Stone  v.  Rogers,  2  M.  &  W,  443  (1837:  an 
action  of  debt),  is  the  same  in  principle. 

If  plaintiff  has  performed  all  he  was  to  do  before  payment,  the  fact  that 
he  has  later  performances  to  complete  is  immaterial.  Kyener  v.  Suwer- 
cropp,  1  Camp.  109  (1807);  Caruthers  v.  Graham,  14  East,  578  (1811);  Rohde 
V.  Thwaites,  6  B.  &  C.  388  (1827);  Massey  Co.  V.  Stairs,  34  N.  Bruns.  595 
(1899);   Hancock  v.  Ross,  18  Ga.  364  (1855). 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)   ASSUMPSIT  273 

NUGENT  V.  TEACHOUT. 

(Supreme  Court  of  Michigan,  1SS7.     67  Mich.  571,  35  N.  W.  254.) 

Error  to  circuit  court,  Mecosta  county ;   C.  C.  Fuller,  Judge. 

Action  in  assumpsit  for  the  price  of  real  estate. 

Morse,  J.  It  appears  from  the  evidence  on  behalf  of  the  plaintiff 
in  this  case  that,  on  the  eighteenth  day  of  December,  1884,  James  Nu- 
gent and  wife  deeded  to  the  defendant  40  acres  of  land  in  the  town- 
ship of  Barton  in  Newaygo  county.  The  expressed  and  actual  con- 
sideration for  this  deed  was  $1,000.  It  was  to  be  paid  for  as  follows: 
Defendant  was  to  pay  a  mortgage  upon  the  premises  of  $700,  and  to 
convey  to  plaintiff  an  acre  of  land,  upon  which  there  was  a  house, 
in  Cadillac.  There  was  another  mortgage  of  $50  upon  tile  land  deeded 
to  defendant  by  Nugent,  and  also  $40  back  upon  the  Cadillac  property, 
both  of  which  sums  plaintiff  was  to  pay  and  satisfy.  At  the  time  of  the 
trade  the  house  at  Cadillac  was  rented.  The  rent  was  to  be  applied 
on  the  $40.  Teachout  not  only  refused  to  deed  the  Cadillac  property 
to  Nugent  but  sold  it  to  a  third  party.  Thereupon  plaintiff  commenced 
suit  to  recover  the  balance  of  the  purchase  price  of  the  40  acres  from 
defendant  before  a  justice  of  the  peace  in  the  city  of  Big  Rapids. 
He  declared  orally  upon  "all  of  the  common  counts"  in  assumpsit,  and 
filed  a  bill  of  particulars  as  follows : 

1884.  Dec.  1.  Balance  of  the  purchase  price  of  S.  E.  %  of  S.  E.  14  of 
section  25,  town  16  north,  of  range  11  west,  sold  by  plaintiff  to  de- 
fendant       $2.50  00 

1885.  Feb.  1.  To  money  had  and  received 10  00 

1885.  March  1.  To  money  had  and  received 10  00 

$270  00 
Defendant  filed  items  of  set-off  as  follows : 

Dec.  1884.  To  interest  on  mortgage §24  00 

To    money    loaned 2  00 

The  two  items  of  $10  each  in  plaintiff's  bill  were  for  moneys  paid  by 
him  to  Teachout  towards  the  $40  on  the  lot  at  Cadillac.  Plaintiff  also 
paid  $15.50  on  the  $50  mortgage. 

The  plaintiff  had  judgment  in  the  justice's  court  for  $261.50.  De- 
fendant appealed  to  the  Mecosta  county  circuit  court.  Upon  the  trial 
in  that  court,  before  a  jury,  the  plaintiff  recovered  a  judgment  for 
$224.95.  The  testimony  in  favor  of  the  plaintiff  was  all  taken  under 
objection,  and  the  contention  of  the  defendant  in  that  court  and  this 
is  that  the  plaintiff  under  his  own  showing  could  not  recover  upon  the 
common  counts.  It  is  insisted  that  he  should  have  declared  specially 
upon  the  contract  for  the  exchange  of  the  lands,  and  alleged  the  breach 
of  such  contract,  and  the  damages  arising  from  such  breach.  The 
counsel  for  plaintiff  claim  that  under  the  common  counts  they  are  en- 
titled to  recover,  because  the  contract  was  expressly  rescinded  by  the 
defendant  when  he  deeded  the  Cadillac  property  to  another.  The 
plaintiff  was  then  at  liberty  to  acquiesce  in  this  rescission,  and  sue  the 


274  PLEADINGS   IN    CONTRACT   ACTIONS  (Part  2 

defendant  for  the  value  of  the  land  conveyed  to  him  by  plaintiff.  They 
also  claim  that  "all  the  common  counts"  include  a  count  for  "lands 
sold  and  conveyed."    See  1  Chit.  PI.  340,  343,  344. 

It  has  not  generally  been  understood  in  this  state  that  the  common 
counts  as  used  in  our  practice  and  pleading  include  a  count  for  real 
property  sold  and  conveyed.  All  the  blanks  in  use,  and  the  precedents 
given  in  the  works  on  practice  in  this  state,  do  not  contain  any  such 
count  as  one  of  the  "common  counts."  Upon  an  oral  declaration 
in  justice's  court  upon  all  the  "common  counts,"  the  defendant  would 
not  naturally  be  apprised  that  the  recovery  was  intended  upon  such 
a  count.  In  this  case,  however,  the  bill  of  particulars  notified  de- 
fendant fully  of  the  nature  of  the  plaintiff's  claim.  Pleadings  in  jus- 
tice's court  have  always  been  liberally  construed,  and  substance  rather 
than  form  has  been  regarded  in  passing  upon  them.  The  chief  object 
of  a  declaration  is  to  plainly  apprise  the  opposite  party  of  the  cause 
of  action  and  claim  of  the  plaintiff.  When  this  is  clearly  done,  and 
a  cause  of  action  is  stated,  the  pleading  is  sufficient.  The  bill  of  par- 
ticulars is  explanatory  of  the  declaration,  and  an  amplification  of  it. 
In  this  case  the  bill  of  particulars  notified  defendant  that  the  plaintiff 
claimed  the  unpaid  balance  upon  the  land  sold  and  conveyed  to  the  de- 
fendant, and  also  informed  him  that  the  recovery  of  it  was  claimed 
under  the  declaration  upon  "all  of  the  common  counts"  in  assumpsit. 

If,  therefore,  the  count  for  lands  sold  and  conveyed  can  be  regarded 
as  one  of  the  common  counts,  the  plaintiff  could  maintain  his  action 
under  his  pleadings,  provided  his  claim  was  one  that  did  not  require 
a  special  count.  According  to  Chitty  the  common  counts  were  of  four 
descriptions — First,  the  indebitatus  count;  secondly,  the  quantum 
meruit;  thirdly,  the  quantum  valebat;  and,  fourthly,  the  account 
stated.  The  indebitatus  count  includes  a  count  for  real  property  sold, 
and  such  count  was  used  to  recover  the  price  or  value  of  an  estate 
sold  by  the  plaintiff  to  the  defendant.  See  1  Chit.  PI.  (16th  Amer. 
Ed.)  351,  352,  354;  Siltzell  v.  Michael,  3  Watts  &  S.  (Pa.)  329.='^ 
And  it  has  been  held  in  many  cases  that  where  the  agreement  to  pay 
the  price  of  the  land  was  to  pay  the  same  in  money,  such  price  could 
be  recovered  under  a  general  count  for  lands  sold  and  conveyed.  Nel- 
son V.  Swan,  13  Johns.  (N.  Y.)  483;  Bowen  v.  Bell,  20  Johns.  (N.  Y.) 
338,  11  Am.  Dec.  286;  Whitbeck  v.  Whitbeck,  9  Cow.  (N.  Y.)  266, 
18  Am.  Dec.  503;  Goodwin  v.  Gilbert,  9  Mass.  510;  Felch  v.  Taylor, 
13  Pick.  (Mass.)  133;  Pike  v.  Brown,  7  Cush.  (Mass.)  133;  Basford 
V.  Pearson,  9  Allen  (Mass.)  387,  85  Am.  Dec.  764;  Elder  v.  Hood, 
38  111.  533. 

23  llallen  v.  Runder,  3  Tyrwh.  959,  963  (1S34)  semhle;  Long  v.  Woodman, 
65  Me.  56  (1875:  was  used);  Peabody  v.  Fellows,  177  Mass.  290,  58  N.  E. 
1019  (1901);  2  Chitty,  Pleading  (13th  Am.  Ed.)  *39.  Accord.  Weigley  v. 
Weir.  7  Serg.  &  R.  (Pa.)  311  (1821)  semble;  Lewis  v.  Culbertson,  11  Serg.  & 
R.  (Pa.)  49,  14  Am.  Dec.  607  (1824)  semble.     Contra. 

Fixtures  sold  and  conveyed  is  a  good  count.  Hallen  v.  Runder,  3  Tyrwh. 
959  (1834). 


I 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  275 

We  are  of  the  opinion  that  the  plaintiff  could  proceed  under  his 
declaration  and  bill  of  particulars  in  this  case,  the  same  as  if  he  had 
specifically  named  a  count  for  lands  sold  and  conveyed  as  one  of  the 
common  counts,  or  as  if  he  had  counted  generally  for  lands  sold  and 
conveyed. 

But  it  is  insisted  that  the  contract  in  this  case  was  not  to  pay  any 
money  for  the  land,  but  to  exchange  other  property,  to  wit,  the  house 
and  lot  at  Cadillac,  for  the  same,  and  that  in  such  case  the  contract 
and  the  breach  of  the  same  must  be  specially  averred.  The  general 
rule  is  as  claimed  by  defendant's  counsel.  When  property,  some  spe- 
cific thing  or  things,  is  to  be  delivered  in  payment  of  the  lands,  the 
agreement  to  so  deliver,  and  the  breach  of  the  same,  must  be  specially 
alleged.  When  a  special  contract  has  been  wholly  performed  by  one 
of  the  parties  to  it,  and  the  other  party  can  only  perform  his  part  by 
the  payment  of  money,  the  money  thus  due  can  be  recovered  upon  the 
common  counts  in  assumpsit.  But  when  the  contract  on  the  part  of 
the  defendant  is  not  to  pay  money,  but  to  deliver  to  the  plaintiff  spec- 
ified articles  of  property,  the  right'  of  the  plaintiff'  to  recover  the  money 
arises,  not  from  the  performance  of  the  contract  on  his  part,  but  from 
the  failure  of  the  defendant  to  deliver  the  property;  consequently 
such  failure  must  be  specially  pleaded,  Phippen  v.  Morehouse,  50 
Mich,  at  page  540,  15  N.  W.  895;  King  v.  Kerr,  4  Chand.  (Wis.) 
159;   Bradley  v.  Levy,  5  Wis.  400. 

It  is  claimed  by  defendant's  counsel  that  in  this  case  the  plaintiff  was 
not  entitled  to  recover  by  simply  showing  that  he  had  performed  his 
part  of  the  contract.  The  obligation  of  the  defendant  to  pay  money 
for  the  land  did  not  spring  out  of  the  performance  of  the  plaintiff, 
but  because  the  defendant  refused  to  deliver  the  deed  of  the  Cadillac 
property.  Therefore  the  plaintiff  should  have  declared  specially,  and 
cannot  recover  on  the  money  counts.  But  it  must  be  remembered 
that  this  promise,  on  the  part  of  the  defendant,  to  convey  the  Cadillac 
property  in  part  payment  of  the  lands  received  by  him,  was  an  oral 
one,  and  therefore  within  the  statute  of  frauds,  and  one  that  he  could 
not  be  obliged  to  perform. 

What,  then,  are  the  rights,  and  what  is  the  remedy,  of  the  plaintiff? 
He  has  conveyed  the  40  acres  to  the  defendant,  and  the  defendant 
has  received  it,  and  accepted  the  benefit  of  it.  Does  he  not,  in  equity 
and  good  conscience,  owe  the  plaintiff'  the  balance  of  the  price  or  value 
of  the  land  in  money?  Is  there  not  an  implied  promise  on  the  part 
of  the  defendant  to  pay  the  plaintiff  the  price  or  value  of  the  land 
conveyed?  We  think  there  is.  Although  he  was  not  obliged  to  con- 
vey the  Cadillac  property,  because  his  promise  to  do  so  was  .void  under 
the  statute  of  frauds,  yet  his  refusal  to  convey  had  the  eft'ect  to  re- 
scind the  contract,  and  raised  an  implied  promise  to  pay  for  what  he 
had  received  upon  it.  Gray  v.  Hill,  Ryan  &  M.  420;  Basford  v. 
Pearson,  9  Allen  (Mass.)  387,  392,  85  Am.  Dec.  764. 

The  case  was  properly  submitted  to  the  jury  upon  the  theory  that. 


276 


PLEADINGS   IN  CONTRACT  ACTIONS 


(Part  2 


if  the  plaintiff's  version  of  the  transaction  was  right,  he  was  entitled 
to  recover  the  dift'erence  between  the  price  of  the  land  and  the  amount 
of  the  $700  mortgage,  principal  and  interest,  less  what  plaintiff  had 
not  paid  upon  the  $50  mortgage,  which  defendant  had  paid  in  full. 

The  judgment  is  affirmed  with  costs.^'* 

Champlin,  J.,  concurred.  Sherwood,  J.,  in  the  result.  CampbelIv, 
C.  J.,  did  not  sit. 


CITY  OF  CHICAGO  v.  CHICAGO  &  N.  W.  RY.  CO. 

(Supreme  Court  of  Illinois,  1900.     186  111.  300,  57  N.  E.  795.) 

Appeal  from  appellate  court.  First  district. 

Action  by  the  city  of  Chicago  against  the  Chicago  &  Northwestern 
Railway  Company.  From  a  judgment  in  favor  of  defendant,  affirmed 
by  the  appellate  court  (87  111.  App.  ^11),  plaintiff  appeals.    Affirmed. 

Cartwright,  J.^^  This  suit  came  on  for  trial  in  the  superior  court 
of  Cook  county  upon  an  issue  formed  by  a  declaration  of  appellant 
containing  only  the  common  counts  and  a  pica  of  non  assumpsit  filed 
thereto  by  appellee.     *     *     * 

Chicago  avenue  runs  east  and  v/est  and  Halsted  street  north  and 
south  in  the  city  of  Chicago,  and  the  tracks  of  defendant  cross  these 
streets  near  the  point  of  intersection,  running  in  a  diagonal  direction 
from  southeast  to  northwest.  Plaintiff,  in  order  to  maintain  the  issue 
on  its  part  under  the  common  counts,  offered  evidence  that  the  tracks 
obstructed  the  public  use  of  the  streets  to  such  an  extent  that  it  became 
necessary  at  the  point  of  intersection,  in  order  to  restore  the  streets 
for  the  use  of  the  public,  to  build  a  viaduct  over  the  tracks,  with  ap- 
proaches on  Halsted  street  and  Chicago  avenue;  that  plaintiff  built 
such  viaduct  and  approaches,  and  defendant  contributed  a  large  part  of 
the  cost  thereof ;  that  suits  were  brought  against  plaintiff'  by  owners  of 


2  4  The  cases  in  accord  are  very  numerous.  The  following  citations  will 
suffice:  Towers  v.  Barrett,  1  T.  R.  133  (1786:  plaintiff  under  privilege 
rescinded) ;  Kirkland  v.  Gates,  25  Ala.  465  (1854 :  contract  rescinded  by  mu- 
tual consent);  Hancock  v.  Ross,  18  Ga.  364  (1855:  plaintiff  in  substantial 
default  on  special  contract) ;  City  of  Elgin  v.  Joslyn,  136  111.  525,  532,  26  N. 
E.  1090  (1891 :  waiver  of  tort) ;  Morriss  v.  Wills,  5  Har.  &  J.  (Md.)  120  -(1820 1 
recovering  indemnity  against  joint  debtor);  Raymond  v.  Eldridge,  111  Mass. 
390  (1873:  defendant  boarded  plaintiff's  expelled  children);  Clark  v.  Pinuey, 
6  Cow.  (N.  Y.)  297  (1826:  money  paid  on  judgment  subsequently  reversed); 
Amer.  Co.  v.  McAden,  109  Pa.  399,  1  Atl.  256 ■  (1885:  recovery  back  of  pre- 
miums where  policy  repudiated);  Tatro  v.  Bailey,  67  Vt.  73,  30  Atl.  685 
(1894 :  contract  became  impossible  of  performance) ;  Hoppess  v.  Straw,  10' 
Leigh  (Va.)  348  (1839 :    plaintiff  paid  money  defendant  was  bound  to  pay). 

That  defendant's  performance  was  by  the  contract  to  have  been  something 
other  than  money  is  innuaterial,  where  the  contract  is  rescinded.  Bassett  v. 
Sanborn,  9  Cush.  (Mass.)  58,  67  (1851) ;  Allen  v.  McNew,  8  Humph.  (Tenn.)' 
46,  55  (1847). 

That  the  rescinded  contract  was  under  seal  is  immaterial.  Selby  v.  Hut- 
chinson, 9  111.  319,  328  (1847). 

2  5  Part  of  the  opinion  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  27T 

property  abutting  on  the  approaches  to  recover  damages  to  their  prop- 
erty resulting  from  such  construction,  and  that  judgments  were  re- 
covered by  such  owners  against  plaintiff,  which  it  paid.  Defendant 
objected  to  the  proft'ered  evidence  on  the  ground  that  it  was  not  ad- 
missible under  the  common  counts.  The  objection  was  sustained,  and 
the  evidence  was  not  admitted.  There  being  no  evidence  in  support 
of  the  declaration,  the  court  instructed  the  jury  to  return  a  verdict 
for  defendant,  which  they  did,  and  judgment  was  entered  accordingly. 
The  branch  appellate  court  for  the  First  district  affirmed  the  judgment. 
The  various  counts  of  the  declaration  were  the  following:  First,  in- 
debitatus assumpsit  for  goods,  wares,  and  merchandise  sold  and  de- 
livered; second,  quantum  valebant  for  goods,  wares  and  merchandise 
sold  and  delivered ;  third,  a  consolidated  money  count  in  indebitatus 
assumpsit  for  money  loaned,  money  paid,  laid  out,  and  expended  for 
defendant  at  its  request,  money  had  and  received  by  defendant  for  the 
use  of  plaintiff,  money  due  and  owing  for  interest,  and  money  due 
for  work  and  material;  fourth,  a  count  for  money  found  due  upon 
an  account  stated.  The  common  cDunts  are  founded  upon  an  expressed 
or  implied  promise  on  the  part  of  the  defendant  to  pay  money  to  the 
plaintiff  in  consideration  of  a  precedent  and  existing  debt.  It  has 
often  been  said  that,  where  there  is  a  contract  fully  performed,  and  je^  cjz-fi^i.*'^^ 
nothing  remains  to  be  done  but  the  payment  of  money  by  the  defend- 
artt,  the  liability  may  be  enforced  under  the  common  counts.  It  is 
said  that  in  this  case  nothing  remains  to  be  done  by  the  defendant  but 
to  pay  the  money  demanded  by  the  plaintiff.  But  that  may  be  said  of 
a  defendant  in  any  case,  and  the  other  part  of  the  proposition — that 
there  must  be  a  contract  fully  performed  by  the  plaintiff — cannot  be 
ignored.    ^Tti£i;g^  was  no_  contract  relation^bei-we^"   ^^^  plaintiff  and 

iruy  anv  liability  of  df^ndarrl^tliprpfnr^ _Ap2.glJ£LnLsaught-tQ  prnve,^  not 

a^contra^t__e2cpi:£^Sj£d_orjiT^)liedy--but-^^  

which  was_performed  by  plaintiff.  There  is  no  pretense  that  the 
defendant  ever  recognized  the  validity  of  the  claims  of  property  own- 
ers, or  the  amount  of  damages,  or  agreed  in  any  manner  to  pay  or 
satisfy  them.  No  count  of  this  declaration  would  give  any  hint  to 
the  defendant  of  the  claim  against  which  it  was  called  upon  to  defend, 
and,  of  course,  the  evidence  could  not  be  applied  to  the  counts  for 
goods,  wares,  and  merchandise,  money  loaned,  money  had  and  re- 
ceived, interest,  labor,  and  material,  or  money  due  on  an  account 
stated.  They  are  all  utterly  foreign  to  the  claim  made  at  the  trial.  The 
only  count  under  which  it  seems  to  be  claimed  that  the  evidence  was 
admissible  is  the  count  for  money  paid  out  for  defendant  at  its  re- 
quest. It  is  argued  that,  if  the  evidence  had  been  admitted,  it  would 
have  established  defendant's  duty  and  legal  obligation  to  build  a  via- 
duct, so  as  to  restore  the  streets  to  proper  condition  for  public  use; 
that  it  would  have  proved  that  plaintiff  performed  such  duty  to  the 
public  owing  by  defendant ;  that,  if  defendant  had  performed  the  duty, 


278  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

it  would  have  become  liable  to  pay  damages  to  property  owners  suf- 
fered by  reason  of  the  construction  of  the  viaduct  and  approaches; 
and  that  in  performing  the  duty  plaintiff  became  liable  to  pay  these 
damages,  and  paid  them.     It  is  argued  that  from  these  facts  the  law 
would  raise  an  implied  promise  on  the  part  of  the  defendant  to  repay 
plaintiff  the  money  so  paid.     An  actioiLJIllder  this  count,  however,  is 
only  sustainable  where  the  money  was  paidhuponj^he  request  exprpsj^fff. 
J*crTmplie_4  of"lhraeTindan't._  2  Enc.  PI.  &  Prac.  1012;    1  Chit.  PI. 
350;  1  Shinn,  PI.  &  Prac.  488.    It  is  not  sufficient  that  defendant  was 
benefited  by  the  payment,  but  iTmust  have  beenjione  at  its  request. 
' — expressed  or  implie_d;    and  plaintiff  _coiild  -only  recover  on  pr-Qa£.^f 
^acts  that  would  show  such  a  request  of  the  defpndant.     One  pa^iy 
"cannot  voruntarily  make  himself  a  creditor  of  another j    and,  if  plaui- 
__^tiff  paid~the7)bhgatibn  of  the  defendant  without  Lts_  knowledgp  or  ron- 
sent,  it  cannot  recover  such  payment  back^  under  this  count.     Durant 
~^~V7iR.ogers,  70117  121. 

Again,  the  alleged  liability  was  not  for  a  debt,  but  for  unliquidated 
damages,  which  the  plaintiff  claims  were  caused  by  the  performance 
of  a  duty  owing  to  the  public  by  defendant.  The  evidence  did  not  re- 
late to  the  payment  of  a  debt,  but  of  unliquidated  damages.  The  de- 
fendant was  not  a  party  to  the  suits  by  the  property  owners,  either 
on  the  record  or  by  notice  from  defendant  to  appear  and  defend,  and 
it  was  not  bound  by  the  judgments  recovered.  The  admission  of  the 
evidence  in  this  case  would  involve  a  trial  upon  the  merits  and  an  in- 
quiry into  the  actual  damages  sustained  by  the  property  owner  in  each 
case.  The  amounts_paijd_by  the  plaintiff  being  in  the  nature  of  unliqui- 
dated  damages^nd  jiot  debts  due„from  the  defendant.,  the  declara- 
-Tion^ust  be_special^«  2  Enc.  PI.  &  Prac.  1014;  1  Chit.  PI.  350.  The 
court  was  right  in  refusing  to  admit  the  evidence  under  the  pleadings. 
The  judgment  of  the  branch  appellate  court  is  affirmed.  Judgment 
affirmed.-^ 

Magruder,  J.,  dissents. 

26  That  special  assumpsit  would  lie,  see,  also,  Moore  v.  Appleton,  26  Ala. 
633  (1S55)  semble. 

It  seems  that  special  assumpsit  cannot  be  maintained  where  the  recovery 
would  not  be  damages.  Hickman  v.  Searcy,  9  Yerg.  (Teun.)  47  (1S3G)  semble; 
Thompson  v.  French,  10  Yerg.  (Teun.)  452  (1837)  semble. 

27  Child  V.  Morley,  8  T.  R.  010  (ISOO)  ;  Spurrier  v.  Elderton,  5  Esp.  2  (1S03) ; 
Sills  V.  Laing,  4  Camp.  81  (1814) ;  Seaver  v.  Seaver,  6  C.  &  P.  673  (1S34).  Ac- 
cord.    Brown  v.  Hodgson,  4  Taunt,  189  (1811).  Contra. 

But  if  the  plaintiff  is  suing  for  a  "sum  certain"  less  damages  caused  the 
defendant  the  common  courts  are  proper.  Basten  v.  Butler,  7  East,  479 
(1806:  simply  were  used);  White  v.  Oliver,  36  Me.  92  (1853:  simply  were 
used);  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713  (1834:  simply  were 
used);  Dermott  v.  Jones,  2  Wall.  1,  9,  17  L.  Ed.  762  (1864);  Michigan  Co. 
v.  Busch,  143  Fed.  929,  75  C.  C.  A.  109  (1906). 

Apparently  no  assumpsit  will  lie  for  the  breach  of  official  duty,  where  the 
recovery  would  be  a  "sum  certain."  Bailey  v.  Butterfield,  14  Me.  112  (1836) ; 
School  V.  Tebbetts,  67  Me.  239  (1877:  generally)  semble.  But  see  Adams  v. 
Farnsworth,  15  Gray  (Mass.)  423  (1860:    was  used).     The  rule  is  the  same 


Ch.  1)  SPECIAL  AND    GENERAL   (INDEBITATUS)   ASSUMPSIT  279 

MARRIOT  V.  LISTER. 

(Court  of  Common  Pleas,  1762.     2  Wils.  141.) 

Case  upon  eight  several  counts  in  assumpsit:  upon  the  general  js- 
sue  there  was  a  general  verdict  and  damages  given  for  the  plaintiff 
upon  all  the  counts.  And  now  it  was  moved  in  arrest  of  judgment  that 
one  of  the  counts  was  bad,  and  therefore  as  entire  damages  were 
taken  upon  this  count  as  well  as  the  rest,  judgment  ought  to  be  ar- 
rested: the  count  objected  to  runs  thus:  "Whereas  James  Lister 
(such  a  day  and  year,  at  such  a  place)  was  indebted  to  Thomas  Mar- 
riot  in  £20  for  the  like  sum  before  that  time  lent  and  advanced  by  the 
said  Thomas  to  James  Dalrymple,  at  the  special  instance  and  request 
of  the  said  James  Lister,  and  being  so  indebted,  he  the  said  James  Lis- 
ter in  consideration  thereof  afterward,  to  wit,  at  such  a  time  and  place, 
promised  to  pay  to  the  plaintiff  the  said  £20  when  requested." 

Per  Curiam.  The  word  lent  is  a  technical  term,  and  no  man  can 
be  indebted  to  another  for  mone)r  lent,  unless  the  money  be  actually 
lent  to  that  person  himself;  but  this  count  alleges,  that  the  defendant 
is  indebted  to  the  plamtiff  for  money  lent  to  a  stranger,  James  Dal- 
rymple. Now  James  Dalrymple  is  certainly  indebted  to  the  plaintiff, 
because  the  money  was  lent  to  James  Dalrymple,  and  the  law  raises 
the  promise  which  is  not  necessary  to  be  proved;  therefore  if  James 
Dalrymple  is  indebted  to  the  plaintiff  for  this  sum  lent  to  him,  the 
defendant  cannot  be  also  indebted  to  him  for  it,  because  there  cannot 
be  a  double  debt  upon  a  single  loan.  This  is  a  special  undertaking  or 
promise  to  pay  a  sum  of  money  lent  by  the  plaintiff  to  a  stranger, 
vv'hich  the  law  does  not  raise,  and  therefore  such  special  promise  is 
traversable,  and  must  be  proved ;  but  upon  an  indebitatus  assumpsit 
for  money  lent  to  a  defendant,  the  law  raises  the  promise,  which  is 
not  traversable,  and  need  not  be  proved.  In  short,  it  is  absurd  to 
affirm  A.  is  indebted  to  B.  for  money  lent  to  C,  for  the  same  money 
cannot  be  lent  to  two  persons  severally;  and  so  is  1  Salk.,  Butcher 
against  Andrews.    And  the  judgment  was  arrested.^® 

where  the  recovery  would  be  damas^es.  McMillan  v.  Eastman,  4  Mass.  378 
(1808);  Parker  v.  Dennie,  6  Pick.  (Mass.)  226  (1828)  semble;  Town  v.  Stacy, 
10  Vt.  562  (1838). 

28  Anonymous,  1  Ventris,  293  (1675);  Butchery.  Andrews,  1  Salk.  23  (1697); 
Mires  v.  Sculthorpe,  2  Camp.  215  (1809) ;  Whitehead  v.  Howard,  5  Moore,  lOoj 

116  (1820);    Bulkley  v.  Landon,  2  Conn.  404,  414  (1818);    Potter  v.  Gronbeck, 

117  111.  404,  7  N.  E.  580  (1886) ;  Brand  v.  Whelan,  18  111.  App.  186  (188.^)) ; 
Emerson  v.  Aultman  &  Co.,  69  Md.  125,  134.  14  Atl.  671  (1888)  semble ;  North- 
rup  V.  Jackson.  13  Wend.  (N.  Y.)  85  (18:34)  semble.  Accord. 

When  are  undertakings  collateral  is  a  question  discussed  usually  in  sure- 
tyship and  is  therefore  omitted  here.  The  general  rule  is  that  the  common 
counts  will  lie  on  any  undertaking  not  collateral  within  the  cases  under  the 
statute  of  frauds.  Power  v.  Rankin,  114  111.  52,  29  N.  E,  185  (1885);  Ames 
in  8  Harv.  L.  Rev.  264. 

Wuit.C.L.Pl.— 19 


280  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

PENN  V.  FLACK. 
(Court  of  Appeals  of  Maryland,  1S31.     3  Gill  &  J.  369.) 

Appeal  from  Mongoniery  County   Court. 

Assumpsit  by  the  appellees,  as  the  endorsees  of  the  following  prom- 
issory note,  against  the  appellant,  William  G.  Penn,  as  the  maker 
thereof,  commenced  on  the  11th  of  October,  1827: 

"$80.  Sixty  days  after  date,  I  promise  to  pay  to  John  Morrison, 
or  order,  eighty  dollars,  without  defalcation,  value  received.  Wm.  G. 
Penn.  May  21st,  1818."  Endorsed:  "Pay  to  James  Flack,  &  Co. 
April  24th,  1824.    John  Morrison."  ^^ 

The  cause  was  argued  before  Buchanan,  Ch.  J.,  and  Earle, 
Stephen  and  Archer,  JJ. 

Stephen,  J.  delivered  the  opinion  of  the  court. 

This  case  presents  two  questions  for  the  decision  of  this  court. 
The  first  is,  whether  an  endorsee  of  the  payee  of  a  note  can  main- 
tain an  action  for  money  had  and  received  against  the  maker?  and 
the  second,  whether  it  is  a  material  variance  to  declare  that  a  ne- 
gotiable note  was  endorsed  by  the  payee  before  it  became  due,  and  to 
offer  proof  of  an  endorsement  after  it  fell  due?  Upon  the  first 
question  there  is  a  contrariety  of  opinions  in  the  books,  but  upon  the 
most  mature  deliberation,  we  are  of  opinion  that  the  action  is  main- 
tainable, upon  sound  legal  principles;  the  note  is  a  contract  by  the 
maker  to  pay  the  money  to  the  payee  or  his  endorsee.  It  is  well 
established,  that  in  an  action  by  the  payee  against  the  maker,  the  note 
is  evidence  upon  a  count  for  money  had  and  received  f'^  being  there- 
fore, evidence  of  money  had  and  received  to  the  use  of  the  payee,  by 
the  maker,  when  the  payee  transfers  his  interest  in  the  note  by  endorse- 
ment, (the  note  being  payable  to  the  payee  or  his  order,)  it  would 
seem  to  follow,  that  by  the  very  terms  of  the  contract,  the  endorsee 
would  become  substituted  in  the  place  of  the  payee,  and  be  invested 
with  all  his  legal  rights,  not  only  as  relates  to  a  suit  upon  the  note 
since  the  statute  of  Anne,  but  also  as  to  the  common  law  count  of 
money  had  and  received.  In  the  case  of  Grant  v.  Vaughan,  3  Bur- 
rows' Rep.  1516,  which  was  an  action  by  the  bearer  of  a  bill  of  ex- 
change against  the  drawer,  which  bill  was  in  the  following  words, 
"Pay  to  Ship  Fortune,  or  bearer,"  so  much.  Lord  Mansfield  makes 
the  following  remarks :  "But  upon  the  second  count,  (which  was 
for  money  had  and  received,)  the  present  case  is  quite  clear,  beyond 

2  9  Statement  of  facts  abridged. 

30  Harris  v.  Huntbach,  1  Burr.  373  (17.57);  Catlin  v.  Gilder,  3  Ala.  536, 
54.5' (1842);  White  v.  Brown,  19  Conn.  577,  583  (1849);  Boyle  v.  Carter,  24 
111.  49  (1860);  McCann  v.  Preston,  79  Md.  223,  28  Atl.  1102  (1894);  Moore 
V.  Moore,  9  Mete.  (Mass.)  417  (1845);  Conrad  Co.  v.  McKittrick,  86  Mich. 
191,  48  N.  W.  1086  (1891);  Hughes  v.  Wheeler,  8  Cow.  (N.  Y.)  77  (1827); 
Mitchell  V.  MeCabe,  10  Ohio,  405  (1841);  Jones  v.  Spear,  21  Vt.  426  (1849); 
M.  &  M.  Bank  v.  Evaus,  9  W.  Va.  373,  384  (1876). 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)   ASSUMPSIT  281 

all  dispute.  For  undoubtedly  an  action  for  money  had  and  received 
to  the  plaintiff's  use,  may  be  brought  by  the  bona  fide  bearer  of  a 
note  made  payable  to  bearer.  There  is  no  case  to  the  contrary.  It 
was  certainly  money  received  for  the  use  of  the  original  advancer  of 
it;  and  if  so,  it  is  for  the  use  of  the  person,  who  has  the  note  as 
bearer.  In  this  case,  Bicknell  himself  might  undoubtedly  have  brought 
this  action.  He  lost  it,  and  it  came  bona  fide  and  in  the  course  of 
trade,  into  the  hands  of  the  present  plaintiff,  who  paid  a  full  and  fair 
consideration  for  it.  Bicknell  and  the  plaintiff  are  both  innocent. 
The  law  must  determine  which  of  them  is  to  stand  the  loss,  and  by 
law  it  falls  upon  Bicknell."  In  this  case  the  bill  was  payable  to 
bearer;  in  the  case  now  before  this  court,  it  was  payable  to  order, 
and  it  seems  to  us  that  it  would  require  a  considerable  degree  of  legal 
ingenuity,  to  distinguish  between  the  two  cases,  in  point  of  legal 
principle,  as  to  the  legal  operation  of  the  two  contracts.  They  were 
both  negotiable  in  their  characters,  the  only  difference  is,  that  the 
one  was  payable  to  bearer,  the  other  to  order.  In  Pierce  v.  Crafts, 
12  Johns.  (N.  Y.)  90,  the  action  was  brought  on  two  promissory  notes .' 
one  was  in  the  following  words :  "For  value  received,  due  Wm. 
Douglass  or  bearer,  $14.50,  with  interest,  payable  the  1st  of  March 
next,  Springfield,  8th  Nov.,  1811,  signed  James  Pierce."  The  second 
note  was  dated,  Dec.  25th,  1811,  and  the  defendant  promised  for 
value  received,  to  pay  Wm.  Douglass,  or  bearer,  the  sum  of  $18, 
with  interest.  In  a  suit  brought  upon  these  notes,  the  plaintiff  below, 
under  the  direction  of  the  court  recovered,  and  upon  a  writ  of  error 
being  brought  to  the  Supreme  Court,  that  court  delivered  the  fol- 
lowing opinion:  "This  was  an  action  of  indebitatus  assumpsit,  for 
money  had  and  received,  money  lent,  etc.,  and  the  chief  question  is, 
whether  the  promissory  notes  in  the  hands  of  the  plaintiff  below,  as 
bearer,  were  properly  admitted  in  evidence  under  such  a  count.  It 
is  clear,  that  as  well  before  as  since  the  statute  making  notes  negoti- 
able, the  person  named  as  payee,  might  give  such  note  in  evidence, 
under  the  general  counts  for  money  lent,  or  money  had  and  received, 
etc."  [here  this  court  refers  to  a  number  of  authorities,  and  amongst 
them,  the  case  of  Grant  v.  Vaughan,  above  referred  to,  and  then  pro- 
ceeds:] "The  statute  of  Anne  gave  an  additional  remedy,  but  did 
not  take  away  the  old  one."  "If,  as  all  agree,  such  a  note  before 
the  statute,  was  evidence  of  money  due  from  the  maker  to  the 
payee,  so  as  to  support  a  count  for  money  had  and  received,  I  can 
see  no  good  reason  why  an  assignee  by  endorsement  or  delivery 
ought  not  to  have  the  same  remedy.  It  was  the  object  of  the  statute 
to  place  the  assignee  in  the  same  relation  to  the  makerj  as  the 
payee  stood  in  before ;  and  the  legal  operation  of  the  transfer  is, 
that  the  money  which  by  virtue  of  the  note  was  due  to  the  payee  from 
the  maker,  is  now  due  from  the  maker  to  the  assignee.  These  notes 
w'ere  payable  to  William  Douglass  or  bearer,  like  the  form  used  in 


282  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

bank  notes.  Bearer  is  descriptio  personas,  of  the  real  payee.  It 
may  be  that  Wm.  Douglass  had  no  knowledge  of  the  note,  or  is  a 
fictitious  person.  The  note,  however,  is  transferable  by  delivery 
merely,  and  possession  was  evidence  of  property  in  the  plaintiff  be- 
low, prima  facie.  It  is  objected  by  the  counsel  for  the  defendant, 
that  here  is  no  privity  of  contract  between  these  parties;  and  several 
authorities  were  cited  to  show,  that  indebitatus  assumpsit  will  not 
lie  except  between  privies.  To  this  objection  there  are  two  answers: 
First,  there  is  a  legal  privity  of  contract  between  the  maker  of  a 
negotiable  note  and  the  assignee  or  bearer  in  this  case.  It  is  a 
contract  to  pay  the  money  to  whoever  may  become  entitled  to  it  by 
transfer,  as  bearer;  and  such  privity  commences,  as  soon  as  the 
bearer  becomes  so  entitled.  Secondly,  it  is  not  true,  that  the  action  for 
money  had  and  received  can  only  be  grounded  on  privity  of  con- 
tract. It  lies  against  the  finder  of  money  lost.  It  is  the  proper 
action  to  recover  money  obtained  by  fraud  or  deceit.  If  a  man 
without  my  authority,  receive  money  due  to  me,  I  may  recover  it 
from  him  in  this  form  of  action,  and  certainly  in  these  cases  there 
is  no  privity  of  contract.  In  the  case  of  Wayman  v.  Bend,  1  Camp- 
bell's Nisi  Prius,  175,  precisely  like  the  present  case.  Lord  Ellen- 
borough  decided,  that  the  right  of  giving  a  promissory  note  in 
evidence  under  the  general  money  counts,  is  confined  to  the  orig- 
inal party  to  whom  the  note  was  payable.  But  this  was  a  nisi 
prius  opinion:  and  as  the  plaintiff  in  that  case  recovered  on  an- 
other count  as  endorsee  of  the  same  note,  it  never  became  material 
to  revise  the  decision.  That  opinion  of  Lord  Ellenborough  con- 
tradicts the  decisions  of  several  of  his  illustrious  predecessors.  In 
the  case  of  Tatlock  v.  Harris,  3  D.  &  E.  174,  it  was  decided,  that 
an  endorsee' of  a  bill  of  exchange  may  recover  against  the  acceptor, 
under  a  count  for  money  had  and  received  ;^^  and  Lord  Kenyon 
there  says :  "In  making  this  decision  we  do  not  mean  to  infringe 
a  rule  of  law,  which  is  very  properly  settled,  that  a  chose  in  action 
cannot  be  transferred ;  but  we  consider  it  as  an  agreement  between 
all  the  parties,  to  appropriate  so  much  property,  to  be  carried  to  the 
account  of  the  holder  of  the  bill."  In  the  case  of  Grant  v.  Vaughan, 
3  Burr.  1516,  it  was  decided,  that  indebitatus  assumpsit  for  money 
had  and  received  was  a  proper  action  to  recover  the  value  of  a  bill 
of  exchange  by  the  bearer  against  the  drawer:  and  Lord  Mansfield 
there  says :  "Undoubtedly  an  action  for  money  had  and  received  to 
the  plaintiff's  use,  may  be  brought  by  the  bona  fide  bearer  of  a 
note,  made  payable  to  a  bearer;  there  is  no  case  to  the  contrary." 
The  case  of  Cruger  v.  Armstrong  and  Another,  3  Johns.  Cas.  (N.  Y.) 
5,  2  Am.  Dec.  126,  supports  the  same  doctrine.  The  principles  con- 
tained in  this  decision  are  fully  sustained  by  the  Supreme  Court  of 
the   United   States,   in  the   Case   of   Raborg  and   others  v.   Peyton, 

81  Powell  V.  Ansell,  3  M.  &  G.  171  (1841).  Contra. 


Ch.  1)  SPECIAL  AND    GENERAL   (INDEBITATUS)   ASSUMPSIT  283 

2  Wheat.  385,  4  L.  Ed.  268.  In  that  case,  (which  was  an  action  of 
debt  ^^  brought  by  the  endorsees  of  a  bill  of  exchange  against  the 
acceptor,)  Mr.  Justice  Storey,  in  delivering  the  opinion  of  the  court 
says:  "Privity  of  contract  may  exist,  if  there  be  an  express  contract, 
although  the  consideration  of  the  contract  originated  aliunde.  Be- 
sides, if  one  person  deliver  money  to  another,  for  the  use  of  a  third 
person,  it  has  been  settled  that  such  a  privity  exists,  that  the  latter 
may  maintain  an  action  of  debt  against  the  bailee.  In  general,  the  legal 
predicament  of  the  maker  of  a  note  is  like  that  of  the  acceptor  of 
a  bill.  Each  is  liable  to  the  payee  for  the  payment  of  the  note  or 
bill,  in  the  first  instance ;  and  after  endorsement  each  incurs  the 
same  liabilities."  The  judge,  in  delivering  the  opinion  of  the  court, 
further  remarks,  that,  "in  point  of  law  every  subsequent  holder,  in 
respect  to  the  acceptor  of  a  bill,  and  the  maker  of  a  note,  stands  in 
the  same  predicament  as  the  payee.  An  acceptance  is  as  much 
evidence  of  money  had  and  received  by  the  acceptor  to  the  use  of  such 
holder,  and  of  money  paid  by  such  holder  for  the  use  of  the  ac 
ceptor,  as  if  he  were  the  payee." 

The  only  remaining  question  is,  whether,  when  a  note  is  declared 
on  by  the  endorsee  against  the  maker  as  being  endorsed  before  it 
is  due,  it  is  a  material  variance  to  prove  it  to  have  been  endorsed  after 
it  became  payable?  In  Chitty  on  Bills,  462,  the  law  is  stated  to  be, 
that  "if  a  note  payable  to  bearer  be  declared  on  as  endorsed,  the 
endorsement  must  be  proved ;  but  when  the  declaration  states  that 
the  endorsement  was  after  the  making  of  the  bill,  and  it  appears 
in  evidence  to  have  been  before-,  or  that  it  was  before  the  bill  was 
due,  and  it  appears  in  evidence  to  have  been  made  afterwards,  this 
is  not  a  material  variance."  In  support  of  this  principle,  he  refers  to 
Young  v.  Wright,  1  Campb.  139. 

In  this  case  we  think  it  proper  to  observe,  that  it  appears  to  us, 
that  the  prayer  in  the  first  bill  of  exceptions  is  too  general  under  the 
act  of  1825,  but,  as  the  prayer  in  the  second  bill  of  exceptions  is 
sufficiently  specific,  and  the  case  was  fully  argued,  to  prevent  future 
litigation,  we  have  delivered  our  opinions  upon  both  exceptions. 

We  are  of  opinion,  that  there  is  no  error  in  the  judgment  of  the 
court  below,  and  that  it  ought  to  be  affirmed. 

Judgment  affirmed.^' 

8  2  For  references  concerning  debt  on  bills  or  notes,  see  Anonymous,  post, 

3  3  Dinsdale  v.  Lanchester,  4  Esp.  201  (1S03);  Eagle  Bank  v.  Smith,  5  Conn. 
71,  13  Am.  Dec.  37  (1S23);  Ware  v.  Webb,  32  Me.  41  (1S50);  Cole  v.  .Cashing, 
8  Pick.  (Mass.)  48  (1S29) ;  Teniiey  v.  Sanborn,  5  N.  H-.  557  (1832);  Olcott  v. 
Rathbone.  5  Wend.  (N.  Y.)  490  (1830)  semble.  Accord.  Wayuam  v.  Bend,  1 
Camp.  175  (1808).  Contra. 

An  indorsee  may  sue  his  indorser  in  indebitatus  assumpsit.  State  Banlr 
V.  Hurd,  12  Mass.  172  (1815);  Elkinton  v.  Fennimore.  13  Pa.  173  (IS.-.O :  non- 
negotiable).  Accord.     Worley  v.   Johnson,  GO  Fla.  294,  53  South.  543,  33  L. 


284  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

McMANUS  V.  CASSIDY. 
(Supreme  Court  of  Pennsylvania,  1871.     66  Pa.  260.) 

October  24th,  1870.  Before  Thompson,  C.  J.,  and  Read,  Agnew, 
Sharswood,  and  Williams,  JJ. 

Error  to  the  Court  of  Common  Pleas  of  Armstrong  county;  No. 
26,  to  October  and  November  Term,  1869. 

On  the  30th  of  March,  1867,  Robert  Cassidy  brought  an  action  of 
assumpsit  against  FeHx  McManus  and  James  G.  Henry,  partners 
as  McManus  &  Henry.  The  action  was  to  recover  the  balance  due 
on  2,035  railroad  ties  delivered  to  the  defendants  under  a  contract 
under  seal,  made  between  the  parties  on  the  9th  of  May,  1866,  by 
which  the  plaintiff  bound  himself  to  deliver  to  the  defendants  2,000 
ties,  described  in  the  agreement,  to  be  inspected  and  approved :  in 
consideration  of  the  plaintiff  performing  his  covenants  for  delivering 
the  ties  the  defendants  agreed  to  pay  him  60  cents  per  tie.  The 
plaintiff  gave  in  evidence  that  he  had  delivered,  under  the  contract, 
2,035  ties  of  the  kind  and  in  the  manner  stipulated  in  the  contract. 
The  ties  amounted  to  $1,221,  of  which  $1,047.74  had  been  paid  to 
the  plaintiff. 

The  defendants  gave  evidence  in  answer  to  the  plaintiff's  case, 
and  submitted  this  point:  Unless  the  jury  believe  that  the  sealed 
contract  between  the  plaintiff  and  defendants  was  abandoned  by  both 
and  all  the  parties,  the  plaintiff  cannot  recover. 

The  court  (Buffington,  P.  J.)  denied  the  point,  and  reserved  it. 
He  further  charged:  *  *  *  "No  doubt  the  plaintiff  might  have 
brought  his  action  on  the  special  agreement,  but  we  are  of  opinion 
[he  may  sustain  the  present  form  of  action  if  he  fully  performed 
the  agreement  on  his  part  by  furnishing  the  entire  number  of  ties 
agreed  upon.]  There  are  cases  where  assumpsit  will  not  lie.  Where 
the  plaintiff  seeks  to  recover  on  an  executory  contract  which  has 
not  been  entirely  fulfilled  on  his  part  and  has  not  been  virtually  re- 
scinded by  the  defendant,  [the  action  must  be  founded  on  the  special 

R.  A.  (N.  S.)  639  (1910)  semble.  Contra.  So  he  may  sue  a  remote  indorser. 
Ellsworth  V.  Brewer,  11  Pick.  (Mass.)  316  (1S31).  Accord.  M.  &  M.  Bank  v. 
Evans,  9  W.  Va.  373,  3S1  (1S70)  semhle.  Contra. 

It  has  been  held  that,  while  a  common-law  debt  is  presumed  to  exist  be- 
tween any  two  parties  to  a  note,  this  may  be  overthrown  by  evidence.  Pace 
V.  Bank,  7  Wheat.  35,  5  L.  Ed.  390  (1822);   Bank  v.  Jackson,  36  Va.  221  (1835). 

The  common  counts  will  lie  by  payee  against  drawer  of  a  bill.  Hodges  v. 
Steward,  Skinner,  346  (1G91);    Hard's  Case,  1  Salk.  23  (1702). 

Also  by  payee  against  acceptor.  Henry  v.  Hazen,  5  Ark.  401  (1843) ;  Wells 
v.  Brigham,  6  Cush.  (:\Iass.)  6,  52  Am.  Dec.  750  (1S50);  Raborg  v.  Peyton, 
2  Wheat.  385,  4  L.  Ed.  268  (1817)  semble.  Accord.  Brown  v.  London.  1  Lev. 
208  (1G70);  Hard's  Case,  1  Salk.  23  (1702)  semble;  Welsh  v.  Craig,  2  Str.  680 
(1726)  semble;  Mackie  v.  Davis,  2  Ya.  219,  229,  1  Am.  Dec.  482  (1796)  semble. 
Contra. 

It  is  held  in  Hodges  v.  Steward,  Salk.  125  (1692),  that  the  common  counts 
will  not  lie  by  an  indorsee  against  the  drawer. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  285 

agreement.  But  not  so  where  the  agreement  has  been  entirely  com- 
pHed  with  by  the  plaintiff,  the  consideration  on  his  part  entirely 
executed,  nothing  left  unfinished  and  nothing  to  be  done  by  defend- 
ants but  simply  to  pay  the  amount  agreed  upon.]  Especially  is  this 
the  case  where  the  contract  has  been  more  than  fulfilled  by  the  plain- 
tiff,-and  accepted  and  enjoyed  by  the  defendant.  [If  the  jury,  there- 
fore, believe  that  th^  contract  was  fully  complied  with  by  the  plain- 
tiff, by  the  delivery  of  the  number  agreed  upon,  or  a  number  ex- 
ceeding that  agreed  upon,  which  were  accepted,  inspected  and  ap- 
proved, we  are  of  opinion  that  he  may  recover  in  this  form  of  action 
for  the  entire  number  so  delivered  and  inspected.]  And  we  further 
are  of  the  opinion  that  the  written  contract  may  be  resorted  to,  to 
fix  and  ascertain  the  measure  of  damages.  If,  however,  the  jury 
should  fail  to  find  the  contract  to  be  completed  by  the  plaintiff,  he 
cannot  recover."     *     *     * 

The  jury  found  for  the  plaintiff  $183.65,  and  the  court  after- 
wards entered  judgment  on  the  yerdict  for  the  plaintiff  on  the  re- 
served! point.  The  defendants  took  a  writ  of  error,  and  assigned 
for  error  the  denial  of  their  point  and  the  parts  of  the  charge  in 
brackets. 

The  opinion  of  the  court  was  delivered,  January  3d,  1871,  by 
Agnew,  J.  With  a  great  desire  to  sustain  this  judgment,  we  find 
ourselves  unable  to  do  so  without  assuming  legislative  powers.  The 
courts  both  of  England  and  of  this  state  have  felt  themselves  bound 
by  the  common  law  to  maintain  the  boundaries  between  actions. 
Where  a  plaintiff'  has  misconceived  the  form  of  his  action,  he  must 
be  turned  out  of  court  to  begin  anew,  no  matter  what  be  the  merit 
of  his  cause.  This  is  a  blot  upon  our  jurisprudence,  and  should  be 
remedied  by  the  legislature.  It  can  easily  be  done  by  simply  giving 
to  the  courts  the  power  to  permit  an  amendment  of  the  form  of  the 
action  at  any  stage  of  the  cause.  Why  should  any  one  be  turned 
away  because  of  the  dress  in  which  he  appears  in  court?  The  ac- 
tion in  this  case  should  have  been  covenant,  and  not  assumpsit.  It 
is  certainly  true,  and  well  settled  by  authority,  that  when  a  special 
contract  has  been  fully  performed,  the  party  who  has  fully  per- 
formed it  may  maintain  general  indebitatus  assumpsit,  and  de- 
clare in  the  common  counts  for  the  work  and  labor  or  ser- 
vices rendered  under  it;  Kelly  v.  Foster,  2  Bin.  4;  Miles 
V.  Moodie,  3  Serg.  &  R.  211;  Algeo  v.  Algeo,  10  Serg.  &  R.  235; 
Harris  v.  Ligget,  1  Watts  &  S.  301  ;  Siltzell  v.  Michael,  3  Watts  & 
S.  329;  Eckel  v.  Murphey,  15  Pa.  488,  53  Am.  Dec.  607;  Edwards 
V.  Goldsmith,  16  Pa.  43.  The  reason  and  foundation  of  this  doctrine 
appears  to  be  that  when  a  service  has  been  fully  performed,  a  duty 
to  compensate  for  it  seems  to  arise  independently  of  the  special 
agreement.  This,  however,  is  really  only  seemingly  so,  and  is  prob- 
ably fallacious,  but  the  doctrine  appears  to  be   well  settled,   as  the 


286  PLEADINGS   IN  CONTRACT  ACTIONS  {Part  2 

cases  cited  show.  Yet,  as  the  evidence  that  the  doctrine  cannot  bear 
a  severe  test,  we  find  it  decided  in  several  cases  that  part  perfor- 
mance will  not  suffice,  nor  will  prevention  stand  for  full  perform- 
ance, and  there  the  plaintiff  must  dieclare  upon  the  special  agree- 
ment, and  show  wherein  his  part  performance  will  entitle  him  to  re- 
cover :  Algep  V.  Algeo,  supra ;  Harris  v.  Ligget,  supra ;  Eckel  v. 
Murphey,  supra.  All  these  cases,  however,  are  where  the  special 
agreement  has  been  by  parol  or  a  simple  contract  in  writing.  On  a 
careful  examination,  I  have  not  found  a  single  case  where  the  spe- 
cial agreement  was  under  seal.  The  doctrine  seems  to  be  universal 
that  where  the  cause  of  action  arises  upon  a  specialty,  or  sealed 
writing,  the  action  must  be  covenant  or  debt,  as  the  case  may  be.^* 
The  only  exception  to  this  is  where  the  specialty  has  been  altered  by 
parol  to  such  an  extent  as  to  make  it  a  new  contract,  thereby  turn- 
ing the  whole  into  parol  ;^°  or  where  the  specialty  is  abandoned  and 
a  new  and  independent  contract  made,  though  referring  to  the  sealed 
instrument  for  some  of  its  terms. ^^  Such  are  the  cases  of  Vicary 
V.  Moore,  2  Watts,  451,  27  Am.  Dec.  323;  Vaughan  v.  Ferris,  2 
Watts  &  S.  46;  Spangler  v.  Springer,  22  Pa.  455;  Lawall  v.  Rader, 
24  Pa.  283;  Lehigh  Coal  &  Nav.  Co.  v.  Harlan,  27  Pa.  441.  And 
a  distinction  is  taken  between  a  mere  waiver  of  a  term  of  the  plain- 
tiff's contract,  which  stands  as  a  condition  precedent  to  his  action, 
and  the  contract  of  the  defendant  on  which  the  action  is  founded. 
See  Jordan  v.  Cooper,  3  Serg.  &  R.  564;  Green  v.  Roberts,  5  Whart. 
84;  McCombs  v.  McKennan,  2  Watts  &  S.  216,  Z7  Am.  Dec.  505; 
Lehigh  Coal  &  Nav.  Co.  v.  Harlan,  27  Pa.  441,  442.  In  the  argument 
the  case  of  McGrann  v.  North  Lebanon  Railroad  Co.,  29  Pa.  82, 
has  been  referred  to  as  a  case  of  a  specialty,  where  an  action  of 
assumpsit  was  sustained  after  perforniance.  But  the  case  is  really 
put  on  the   ground   that   the   special   contract  had   been   abandoned, 

3  4  Bennus  v.  Guyldley,  Cro.  Jac.  505  (1619) ;  Bulstrode  v.  Gilburn,  2  Str. 
1027  (1734);  Phillips  v.  American  Guano  Co.,  110  Ala.  521,  18  South.  104 
(1895);  North  v.  Nichols,  37  Conn.  375  (1870);  Magrucler  v.  Belt,  7  App.  D. 
C.  .303,  311  (1895);  Johnston  v.  Salisbury,  61  111.  316  (1871);  Ferguson  v. 
Rhoades,  7  Blackf.  (Ind.)  262  (1844);  Rankin  v.  Darnell,  11  B.  Mon.  (Ky.) 
30,  52  Am.  Dee.  557  (1850);  Dunn  v.  Motor  Co.,  92  Me.  165.  42  Atl.  389  (1898); 
Firemen's  Co.  v.  Floss,  67  Md.  403,  ICi  Atl.  •  139,  1  Am.  St.  Rep.  398  (1887) ; 
Codman  v.  Jenkins,  14  Mass.  93  (1817);  Knowlton  v.  Tilton,  38  N.  H.  257 
(1859);  Outcalt  v.  Huffman,  3  N.  J.  Law,  818  (1811);  Hamilton  v.  Hart,  109 
Pa.  629  (1885);  Crandall  v.  Johnson,  26  R.  I.  250,  58  Atl.  765  (1904);  Marine 
Co.  V.  Young,  1  Cranch,  3.32,  342,  2  L.  Ed.  126  (1803);  McKay  v.  Darling,  65 
Vt.  639,  27  Atl.  324  (1893):    State  v.  Harmon,  15  W.  Va.  115  (1879).  Accord. 

35  Heard  v.  Wadham,  1  East,  619,  630  (1801)  semble;  Smith  v.  Sharpe,  162 
Ala.  433,  50  South.  381,  136  Am.  St.  Rep.  52  (1909) ;  Knowlton  v.  Tilton,  38 
N.  H.  257  (1859)  semble;  Carrier  v.  Dilworth,  59  Pa.  406  (1868);  Baird  v. 
Blaigrove,  1  Va.  170  (1793).  Accord.  So  if  the  law  alters  the  contract,  ac- 
cording to  McCardell  v.  Miller,  22  R.  I.  96,  46  Atl.  184  (1900). 

3  6  Sturlyn  v.  Albany,  Cro.  Eliz.  67  (1587);  Smith  v.  Sharpe,  162  Ala.  433, 
50  South.  .381,  136  Am.  St.  Rep.  52  (1909) ;  Fry  v.  Talbott.  106  Md.  43.  66 
Atl.  664  (1907);  Mill  Dam  v.  Hovey,  21  Pick.  (Mass.)  417,  429  (1839);  Miller 
V.  Watson,  7  Cow.  (N.  Y.)  39  (1827).  Accord. 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)   ASSUMPSIT  287 

though  it  must  be  admitted  that  no  single  ground  is  very  distinctly 
stated,  and  the  reasoning  of  the  opinion  is  not  clear.  On  the  other 
hand,  the  cases  of  Irwin  et  al.  v.  Shultz,  46  Pa,  76,  and  Shaeffer  v. 
Geisenberg,  47  Pa.  500,  decide  that  assumpsit  cannot  be  maintained 
upon  performance  of  a  contract  under  seal,  and,  indeed,  they  may 
be  considered  as  really  ruling  the  question  before  us,  for  in  both 
cases  the  special  contract  had  been  completed  before  the  action  was 
brought.  The  judgment  must  therefore  be  reversed. 
Judgment  reversed.^ ^ 


FIRST     CONGREGATIONAL     MEETING-HOUSE     SOC.     v. 
TOWN  OF  ROCHESTER. 

(Supreme  Court  of  Vermont,  1894.    66  Vt.  501,  29  Atl.  810.) 

Exceptions  from  Windsor  county  court;    Munson,  Judge. 

Action  by  the  First  Congregational  Meeting-House  Society  against 
the  town  of  Rochester  to  recover  one-third  the  expense  of  repairs  to 
meeting-house.  Judgment  was  rendered  for  plaintiff,  and  defendant 
excepts.    Affirmed. 

Ross,  C.  J.^®  1.  The  defendant's  exceptions  as  to  the  admission 
of  the  lease  in  evidence,  to  the  refusal  to  order  a  verdict  in  its  favor, 
and  to  the  refusal  to  comply  with  its  requests,  numbered  1  to  7,  inclu- 
sive, concentrate  in  the  contention  that  on  the  proof  the  plaintiff  did 
not  entitle  itself  to  maintain  assumpsit.  The  first  count  of  the  dec- 
laration is  special  assumpsit  to  i^ecover  of  the  defendant  its  proportion 
of  certain  repairs,  as  fixed  by  a  written  lease,  of  the  plaintiff's  meeting- 
house and  grounds,  executed  March  6,  1849.  The  lease  is  defectively 
executed  by  the  plaintiff,  but  it  was  stipulated  on  the  trial  that  the 
trial  should  proceed  the  same  as  it  would  if  the  lease  had  been  properly 
executed.  The  lease,  under  this  stipulation,  is  to  be  treated  as  prop- 
erly signed,  sealed,  and  acknowledged  by  the  plaintiff.  It  is  a  deed 
poll.  It  is  not  in  form  an  indenture,  and  is  neither  signed  nor  sealed 
by  the  defendant.  By  taking  possession  under  it  the  defendant  ac- 
cepted the  lease,  and  became  bound  to  carry  out  and  perform  those 
provisions  of  it  which  rested  upon  it  to  perform.  Such  acceptance  did 
not  make  the  lease  an  instrument  under  the  seal  of  the  defendant.  In 
law  it  was  similar  to,  and  no  more  than,  a  written  acceptance  of  its 
provisions,  signed  by  the  defendant,  but  not  under  its  seal.  As  to  the 
defendant,  such  written  acceptance  would  make  the  whole  instrument 
unsealed  on  its  part.  The  defendant  stands  related  to  the  lease,  like 
parties  to  an  instrument  executed  under  the  seal  of  each, 'on  which 
the  time  of  performance  has  been  extended  by  parol,  or  by  writing 
not  under  seal.     In  such  case  covenant  will  not  lie,  but  assumpsit  will. 

87  Warren   v.   Ferdinand,  9   Allen   (Mass.)  357   (1804).  Accord. 
3  8  Tart  of  the  opinion  omitted. 


288  PLEADINGS   IN  CONTRACT  ACTIONS  (Part  2 

Sherwin  v.  Railroad  Co.,  24  Vt.  347;  Barker  v.  Railroad  Co.,  27  Vt. 
766;  Smith  v.  Smith,  45  Vt.  433;  Johnson  v.  Muzzy,  45  Vt.  419,  12 
Am.  Rep.  214. 

In  regard  to  the  items  sought  to  be  recovered,  the  lease  was  fully 
executed  by  the  plaintiff.  In  respect  to  these  items,  it  was  not  execu- 
tory; but,  if  executory,  recovery  could  be  had  under  the  first  count. 
These  exceptions  are  not  sustained.  The  plaintiff  could  maintain  this 
action  of  assumpsit  if  properly  sustained  by  the  evidence.     *     *     * 

Judgment  affirmed.^ ^ 

Start^  J.,  being  engaged  in  county  court,  did  not  sit. 


SECTION  2.— NECESSARY  ALLEGATIONS 
I.  Spe;cial  Assumpsit 


DECLARATION  IN  SPECIAL  ASSUMPSIT. 

(2  Chitty,  Pleading  [13tli  Am.  Ed.]  pp.  *17,  *328,  *329.) 

In  the  Common  Pleas. 

next  after  in  Michaelmas  Term,  1  Will.  4. 


Middlesex,  (to  wit)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea 
of  trespass  on  the  case  upon  promises;  and  thereupon  the  said  A.  B. 
by  E.  F.  his  attorney,  complains : 

For  that  whereas  heretofore,  to  wit,  on,  etc.  (date  of  agreement)  to 
wit,  at,  etc.  (venue)  by  a  certain  agreement  then  and  there  made  be- 
tween said  plaintiff  and  the  said  defendant,  the  said  plaintiff  agreed 
to  perform  and  complete  the  mason  Vv'ork,  at  the  Regent's  Circus,  north 
end  of  Portland  Place,  in  the  New  Road,  at  the  following  prices, 
finding  all  materials  and  labor,  and  to  do  the  same  to  the.  satisfaction 
of  the  architect  appointed  to  survey  the  same;  that  is  to  say,  straight 
Portland  kirb,  twelve  inches  by  ten  inches,  with  rail  holes,  plugs  and 
lead,  including  the  stone  for  the  brace  bar,  at  seven  shillings  and  five 
pence  per  foot,  run  circular  ditto  at  eight  shillings  per  foot,  rim  bases 
for  the  lamp  irons  two  feet  four  inches  and  three-quarters,  by  two 
feet  four  inches  and  three-quarters,  and  twelve  inches  high,  at  two 
pounds  each,  including  rail-holes,  and  to  do  the  whole  complete  in  all 

39  Sutherland  v.  Leshnan,  3  Esp.  42  (ISOO) ;  Willenborg  v.  Ry.  Co.,  11  111. 
App.  298  (1SS2);  Baldwin  v.  Emery,  89  Me.  496,  36  Atl.  994  (1897);  Pike  v. 
Brown,  7  Cush.  (Mass.)  133  (1851);  Gale  v.  Nixon,  6  Cow.  (N.  Y.)  445  (1826); 
Pratt  V.  Harding,  30  Pa.  525  (1858).  Accord. 

It  has  been  held  that  a  beneficiary,  suing  on  a  contract  under  seal,  must 
use  assumpsit.  Snow  v.  Merriam,  133  111.  App.  641  (1907);  Varney  v.  Brad- 
ford. 86  Me.  510,  30  Atl.  115  (1894:  not  clear).  Accord.  Abe  Lincoln  Soc,  v. 
Miller,  23  111.  App.  341  (1887).  Contra. 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)  ASSUMPSIT  289 

respects  according  to  the  drawings,  and  within  the  time  specified  in  the 
specification  deHvered ;  and  it  was  also  then  and  there  agreed  between 
the  said  plaintiff  and  the  said  defendant,  that  he  the  said  defendant 
should  advance  £12.  in  cash,  for  every  hundred  feet  set  complete, 
and  the  balance  by  bill  at  two  months,  after  the  accounts  were  ad- 
justed; the  whole  of  the  Portland  stone,  kirb  and  gate  bases  on  the 
south  side  of  the  whole  line  of  the  new  road,  from  east  to  west,  to  be 
fixed  and  made  complete,  in  all  respects,  on  or  before  the  25th  day  of 
November,  in  the  year  aforesaid,  and  the  half-circle  area  to  be  made 
complete  on  or  before  the  25th  day  of  December  in  the  same  year;  and 
part  of  the  work  having  then  already  been  done  by  G.  H.  it  was  there- 
by further  understood  that  the  same  should  be  ascertained  by  L.  M. 
of,  etc.  surveyor,  on  the  part  of  the  said  defendant,  and  E.  F.  of,  etc. 
on  the  part  of  the  said  plaintiff;  and  in  case  any  dispute  should  arise, 
the  same  to  be  decided  by  their  umpire,  and  the  balance  paid  to  the 
said  G.  H.  as  well  as  the  money  then  already  advanced  to  him  by  the 
said  defendant,  was  to  be  accounted  for  by  the  said  plaintiff,  and  de-  "^ 
ducted  from  the  balance  due  to  him,  when  completed,  but  at  present  '^^^**^ 

to  draw  only  for  the  setting  the  same;  and  the  said  agreement  being 
so  made,  afterwards,  to  wit,  on,  etc.  aforesaid,  at,  etc.  (venue)  afore- 
said, in  consideration  thereof,  and  that  the  said  plaintiff,  at  the  spe- 
cial instance  and  request  of  the  said  defendant,  had  then  and  there 
undertaken,  and  faithfully  promised  the  said  defendant,  to  perform 
and  fulfill  the  said  agreement,  in  all  things  on  the  said  plaintiff's  part 
and  behalf  to  be  performed  and  fulfilled,  he  the  said  defendant  under- 
took, and  then  and  there  faithfully  promised  the  said  plaintiff  to  per- 
form and  fulfill  the  said  agreement  in  all  things  on  the  said  defendant's 
part  and  behalf  to  be  performed  and  fulfilled;  and  although  the  said 
plaintiff  hath  always,  from  the  time  of  the  making  of  the  said  agree- 
ment, performed  and  fulfilled,  all  things  on  his  part  and  behalf  in 
the  said  agreement  to  be  performed  and  fulfilled,  and  did  afterwards, 
to  wit,  on  the  day  and  year  first  aforesaid,  at,  etc.  (venue)  enter  upon 
and  commence  the  said  work  and  for  that  purpose  did  procure  and  find 
all  materials  and  labor  necessary  for  performing  the  same,  and  did  the 
same  in  part,  to  wit,  one  thousand  two  hundred  feet  thereof,  to  the 
satisfaction  of  the  architect  appointed  to  survey  the  said  work,  and 
hath  always  been  ready  and  willing  to  perform  and  complete  the  whole 
of  the  said  work,  in  pursuance  of  the  said  agreement,  of  all  which  said 
premises  the  said  defendant  hath  had  notice,  to  wit,  at,  etc.  (venue) 
aforesaid :  yet  the  said  plaintiff  in  fact  saith,  that  the  said  defendant, 
contriving  and  wrongfully  intending  to  injure  the  said  plaintiff',  did 
not  nor  would  perform  the  said  agreement,  nor  his  said  promise  and 
undertaking,  but  thereby  craftily  and  subtly  deceived  the  said  plain- 
tiff in  this,  to  wit,  that  the  said  defendant  did  not  nor  would  advance 
the  said  sum  of  £  12.,  in  cash,  for  each  of  the  said  one  hundred  feet, 
set  complete,  but  on  the  contrary  thereof,  hath  hitherto  wholly  ncg- 


290 


PLEADINGS   IN   CONTRACT  ACTIONS 


(Part  2 


lected  and  refused  so  to  do,  to  wit,  etc.  at,  etc.  (venue)  aforesaid ;  and 
the  said  defendant  further  disregarding  the  said  agreement,  and  his 
said  promise  and  undertaking,  afterwards,  to  wit,  on,  etc.  to  wit,  etc. 
(venue)  aforesaid,  did  not  nor  would  permit  or  suffer  the  said  plain- 
tiff to  proceed  to  complete  the  said  work,  and  then  and  there  would 
wholly  hinder,  and  prevented  him  from  so  doing  and  then  and  there 
wrongfully  discharged  the  said  plaintiff  from  any  further  perform- 
ance or  completion  of  his  said  agreement  and  promise  and  undertak- 
ing, whereby  the  said  plaintiff  hath  lost  and  been  deprived  of  the  profits 
and  advantages  which  he  otherwise  might  and  would  have  derived  and 
acquired  from  the  completion  of  the  said  works,  to  wit,  at,  etc.  (venue) 
aforesaid. 

Wherefore  the  said  plaintiff  saith  that  he  is  injured  and  hath  sus- 
tained damage  to  the  amount  of  £ ,  and  therefore  he  brings  his 

suit,  etc. 


PENNY  V.  PORTER. 

(Court's  of  King's  Bench,  1801.     2  East,  2.) 

In  an  action  on  the  case  for  the  non-delivery  of  wheat  according 
to  agreement,  the  first  count  of  the  declaration  stated  the  contract  to  be, 
that  in  consideration  that  the  plaintiff  had  agreed  to  purchase  a  large 
quantity,  to  wit,  100  bags  of  wheat,  each  bag  weighing  300  lb.  and  for 
40  bags,  part  of  the  same,  to  pay  to  the  defendant  £1.  16s,  per  bag, 
and  for  the  remaining  60  bags  to  pay  the  market  price  at  the  then 
next  market  day;  the  defendant  undertook  to  sell  and  deliver  to  the 
plaintiff  40  of  the  bags  immediately,  and  the  remaining  60  bags  at' the 
then  next  market  day  at  the  stipulated  price.  It  then  averred  the  sale 
and  delivery  of  the  first  40  bags  in  part  performance  of  the  contract, 
and  set  forth  a  breach  as  for  the  non-delivery  of  the  remainder.  The 
third  count  was  similar  in  form,  only  stating  the  contract  to  be  for  the 
sale  of  100  bags  of  wheat,  50  bags  of  which  were  to  be  sold  and  de- 
livered immediately  at  the  price  mentioned,  and  the  remaining  50  bags 
at  the  next  market  day,  for  the  then  market  price.  The  contract  was 
laid  more  generally  in  other  counts.  At  the  trial  before  Le  Blanc,  J., 
at  the  last  assizes  at  Bristol,  the  contract  proved  was,  that  the  defend- 
ant was  to  let  the  plaintiff  have  100  bags  of  wheat,  40  or  50  bags 
to  be  delivered  at  the  then  present  market  for  the  stipulated  price,  and 
the  remainder  at  the  following  market  for  the  then  market  price.  And 
further  it  was  proved  that  the  defendant  immediately  after  delivered 
40  of  the  bags,  but  did  not  deliver  the  remainder  at  the  next  market 
day.  The  question  was.  Whether  the  contract  proved,  being  optional 
in  the  defendant  to  deliver  40  or  50  bags  the  first  day,  and  the  re- 
mainder the  next  market  day,  sustained  the  first  count,  stating  the  con- 
tract to  be  positively  for  the  delivery  of  40  bags  on  the  first,  and  the 
remainder  on  the  subsequent  market  day,  inasmuch  as  the  defendant 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  291 

had  decided  his  option  by  the  delivery  in  fact  of  the  40  bags  in  the 
first  instance?  The  jury,  being  of  opinion  that  the  defendant  had  an 
option  to  deliver  40  or  50  bags  in  the  first  instance,  found  a  verdict 
for  him  under  the  learned  judge's  direction :  and  leave  was  given  to 
move  to  set  the  verdict  aside,  and  enter  a  verdict  for  the  plaintiff  for 
£3.  12s.  damages,  if  the  Court  should  be  of  a  different  opinion. 

This  matter  was  once  before  agitated  in  this  Court  in  Hilary  term 
last,  when  it  underwent  great  discussion.  It  then  came  on  upon  a  rule 
for  setting  aside  a  nonsuit  in  the  first  trial  before  Lord  Eldon,  at  the 
preceding  summer  assizes,  on  the  ground  of  the  variance  mentioned 
between  the  declaration  and  the  evidence :  and  a  new  trial  was  granted 
on  the  ground  of  some  uncertainty  in  the  evidence,  as  to  what  the 
real  contract  was,  which  the  Court  thought  should  have  been  left  to 
the  jury  to  decide.  But  they  then  intimated  a  strong  opinion,  that  if 
the  contract  were  found  to  have  been  optional  in  the  first  instance,  it 
could  not  be  laid  as  an  absolute  contract  for  a  certain  number  of  bags, 
though  in  the  event  of  the  party's  election  of  one  of  the  alternatives. 

Lens,  Serjt.,  now  moved  to  enter  the  verdict  for  the  plaintiff,  on  the 
ground,  that  though  the  contract  were  optional  in  the  defendant  in 
the  first  instance,  yet  he  having  made  his  election  to  deliver  40  bags  on 
the  first  day,  thereby  put  an  end  to  the  option;  and  it  might  then  be 
declared  on  as  an,  absolute  contract  in  effect  to  deliver  those  40  bags 
on  the  first  day,  and  the  remaining  60  on  the  subsequent  market  day. 

The  Court  however  were  of  a  different  opinion,  and  held  that  the 
contract  must  be  stated  in  the  declaration  according  to  the  original 
terms  of  it,  which  made  it  optional  in  the  defendant  to  deliver  40  or 
50  bags  in  the  first  instance,  and  not  an  absolute  contract  for  the  de- 
livery of  either  of  those  quantities. 

Rule  refused.*" 

40  Curley  v.  Dean,  4  Conn.  259,  265,  10  Am.  Dec.  140  (1822)  semble;  Russell 
V.  South.  Britain  Society,  9  Conn.  508,  520  (1833) :  Hatch  v.  Adams,  8  Cow. 
(N.  Y.)  35  (1827);    Stone  v.  Knowlton,  3  Wend.  (N.  Y.)  374  (1829).  Accord. 

In  any  case  the  promise  must  be  truthfully  alleged  to  avoid  a  variance. 
Anonymous,  1  Ld.  Raym.  735  (1701);  Cooke  v.  Munistone,  1  B.  &  P.  (N.  R.) 
351  (1805);  Wilkinson  v.  Moseley,  18  Ala.  288  (1850);  Chittenden  v.  Steven- 
son, 26  Conn.  442  (1857);  Menifee  v.  Hlggins,  57  111.  50  (1870);  Bannister  v. 
Weatherford,  7  B.  Mon.  (Ky.)  271  (1847);  Hilt  v.  Campbell,  6  Me.  1U9  (1829): 
Bull  V.  Schuberth,  2  Md.  38,  56  (1852);  Read  v.  Smith.  1  Allen  (Mass.)  519 
(1861);  Rose  v.  Jackson,  40  Mich.  29,  36  (1879);  Perrine  v.  Hankinson,  11 
N.  J.  Law,  181  (1829);  Douglass  v.  Leland,  1  Wend.  (N.  Y.)  490  (1828);  Davis- 
son  V.  Ford,  23  W.  Va.  617,  632  (1884). 

The  promise  of  the  defendant  must  be  alleged.  Buckler  v.  Angil,  1  Lev. 
164  (1GG5);  Lea  v.  Welch,  2  L<1.  Raym.  1516  (1727);  Hill  v.  Nichols.  50  Ala. 
336  (1874);  Brown  v.  Starbird,  98  Me.  202.  56  Atl.  902  (190.3);  Cooper  v. 
Landon,  102  Mass.  58  (1869);  McNulty  v.  Collins,  7  Mo.  09  (1841);-  Candler  v. 
Rossiter,  10  Wend.  487  (1S33);  Sexton  v.  Holmes,  17  Va.  566  (1813);  Wolf 
V.  Spence,  39  W.  Va.  491,  20  S.  E.  610  (1894). 

Words  equivalent  to  "promise"  may  be  used.     Coulston  v.  Carr,  Cro.  Eliz. 

847  (1701);   Mountford  v.  Horton,  2  B.  &  P.  (N.  R.)  62  (1805);   Corbett  v.  Pack- 

ington,  6  B.  &  C.  268   (1827);    North  v.  Klzer,   72  111.   172  (1874);    Avery  v. 

Tyringham,  3  Mass.  160,  176,  3  Am.  Dec.   105  (1807);    Beardsley  v.   South- 

mayd,  14  N.  J.  I,aw,  534,  542  (1835) ;    Woodson  v.  Moody,  4  Humph.  (Teun. 


292  PLEADINGS   IN  CONTRACT  ACTIONS  (P^^t  2 

SMITH  V.  WEBSTER. 

(Supreme  Judicial  Court  of  New  Hampshire,  1868.    48  N.  H.  142.) 

Assumpsit,  the  declaration  containing  three  counts,  the  two  first  on 
a  special  contract,  and  being  similar,  and  the  third  for  money  had  and 
received,  and  was  not  rehed  on  at  the  trial.     *     *     * 

Case  reserved. 

Sargent,  J.*^  *  *  *  jg  ^i^Q^e  a  variance  between  the  contract  as 
alleged  and  as  proved?  and  is  the  variance  material?  In  general  a 
contract  which  is  declared  on  as  the  ground  of  the  defendant's  liability 
must  be  proved  substantially  as  alleged ;  and  in  a  declaration  alleging 
that  the  defendant  promised  to  do  certain  things,  the  consideration  on 
which  the  promise  is  founded  must  be  proved  as  stated  or  the  plain- 
tiff will  fail.  1  Ch.  PI.  §  298,  (9  Am.  Ed.).  But  there  is  a  difference 
in  the  rule  applied  to  the  two  sides  of  such  a  contract.  Chitty  states 
the  rule  (1  Ch.  PI.  §  317)  in  this  way:  "In  stating  the  consideration, 
it  is  in  all  cases  absolutely  necessary  that  the  whole  of  the  entire  con- 
sideration for  the  performance  of  the  act  in  question  should  be  set 
forth,  and  that  when  the  contract  has  consisted  of  several  engagements 
and  promises  quite  distinct  from  each  other,  but  founded  on  one  and 
the  same  entire  consideration,  an  action  cannot  be  brought  for  the 
breach  of  any  one  of  such  engagements  or  promises,  without  setting 
forth  in  the  declaration  the  entire  consideration  applicable  to  all  the 
promises  collectively.  But,"  he  adds,  "the  rule  is  different  in  stating 
the  defendant's  promise  itself,  for  here  the  plaintiff  is  only  required  to 
set  forth  with  correctness  that  particular  part  of  the  contract  which 
he  alleges  the  defendant  to  have  broken." 

According  to  that  rule  there  is  no  variance  in  this  case.  The  con- 
sideration of  the  defendant's  promise  was  the  payment  of  $100  cash, 
and  that  must  be  proved  as  stated,  and  was  so  proved.  There  is  no 
controversy  anywhere  as  to  that.  But  in  alleging  the  defendant's 
promise  it  is  only  said  that  he  promised  to  sell  and  deliver  one  ped- 
dler's sleigh,  and  the  proof  is  that  he  promised  to  sell  and  deliver 
one  sleigh  and  seven  boxes  of  lozenges.     But  the  plaintiff  does  not 

303  (1843);  Union  Stopper  Co.  v.  McGara,  66  W.  Va.  403,  409,  66  S.  E.  698 
(1909).  Accord.  Muldrow  v.  Tappan,  0  Mo.  276  (1840);  Wolf  v.  Spence,  39 
W.  Va.  491,  20  S.  E.  610  (1894).  Coutra. 

■f    A  promise  implied  in  fact  is  declared  on  as  an  express  promise.     Paj'ne  v. 

'Grant,  81  Va.  104,  IGS  (1885). 

Y»  An  allegation  of  a  promise  "to  pay  the  plaintiff"  is  good,  without  stating 
that  it  is  a  promise  "to  the  plaintiff."  Coulston  v.  Carr,  Cro.  Eliz.  847 
(1701);  Brown  v.  Boorman,  11  CI.  &  F.  1,  6  (1844);  McCredy  v.  James,  6 
Whart.  (Pa.)  547,  5GS  (1841).  Accord.  Buckler  v.  Angil,  1  Sid.  246  (1665); 
Myers  v.  Davis.  Fed.  Cas.  No.  9,986  (1868).  Contra.  Promised  "the  plain- 
tiff" is  good,  without  adding  "to  pay  the  plantiff."  Royle  v.  Bagshaw,  Cro. 
Eliz.  149  (1.589). 

t  It  must  be  alleged  that  the  defendant  made  the  promise.     Law  v.  Sanders,. 
Cro.  Eliz.  913  (1603);    Copes  v.  Matthews,  10  Smedes  &  M.  (Mi^;s.)  .398  (1848). 
•4  1  Most  of  the  statement  of  facts  and  part  of  the  opinion  omitted. 


^ 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  293 

complain  that  the  lozenges  were  not  delivered  according  to  contract, 
but  admits  that  they  were  so,  but  the  plaintiff  has  set  out  that  part 
of  the  contract  which  he  alleges  the  defendant  has  broken,  and  all 
for  which  he  seeks  to  recover  damage,  and  that  is  enough.  Colburn 
V.  Pomeroy,  44  N.  H.  19,  and  the  cases  cited  are  to  the  point  that  the 
consideration  moving  from  the  plaintiff,  which  is  set  up  as  the  ground 
of  the  defendant's  promise,  must  be  fully  stated,  and  must  be  proved 
as  alleged,  and  is  fully  in  accordance  with  the  above  rule. 

Alvord  V.  Smith,  5  Pick.  232,  is  a  case  in  point.  There  the  plain- 
tiff alleged  that  in  consideration  of  his  having  transferred  to  defendants 
certain  stock  in  a  certain  company,  the  defendants  promised  to  pay 
all  arrearages  that  then  were  or  might  become  due  from  him  to  the 
company,  and  alleged  a  breach  of  this  promise.  On  trial  it  was  proved 
that  in  consideration  of  the  transferring  of  the  stock  by  plaintiff, 
defendants  promised  not  only  to  pay  all  arrearages  that  then  were 
or  might  become  due  from  him  to  the  company,  but  also  to  pay  him 
one  hundred  dollars.  But  the  court  say  this  is  no  variance,  because 
the  one  hundred  dollars  may  have' been  paid,  at  least  it-is  not  claimed 
in  this  action.  In  this  respect  such  actions  are  like  actions  of  cove- 
nants, where,  though  there  may  be  many  covenants  in  the  deed,  the 
plaintiff  may  sue  for  the  breach  of  either  one  alone. 

In  Greenl.  Ev.  §§67  and  68,  this  distinction  is  clearly  stated,  and 
corresponds  with  the  above  rule. 

Judgment  on  the  verdict.*^ 


JAMES  &  MITCHELL  v.  ADAMS. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1S80.    16  W.  Va.  245.) 

Green,  P.,  furnishes  the  following  statement  of  the  case: 
It  is  an  action  of  assumpsit  brought  in  the  circuit  court  of  Wood 
county,  by  the  plaintiff's,  James  and  Mitchell,  against  the  defendant, 
Adams,  for  his  refusal  to  accept  and  pay  for  certain  goods,  etc., 
which  by  a  special  contract  had  been  sold  to  him  by  them.  On  the 
first  trial  of  the  case  the  jury  found  a  verdict  for  the  plaintiffs  for 
$1,000.00;  and  the  court  refused  to  grant  a  new  trial  and  entered 
up  a  judgment  pursuant  to  the  verdict.  The  defendant  obtained  a 
writ  of  error  to  this  court;  and  the  judgment  of  the  circuit  court 
was  reversed,  a  new  trial  awarded,  and  case  remanded  to  the  circuit 
court,  and  the  plaintiff*  permitted  to  amend  his  declaration.     See  8 

42  Cotterill  v.  Cuff.  4  Taunt.  2S5  (1812) ;  Curley  v."  Dean,  4  Conn.  259,  264, 
10  Am.  Dec.  140  (1S22)  ;  Shea  v.  Kerr,  1  Pennewill  (Del.)  530,  43  Atl.  843 
(1899);  Alvord  v.  Smith.  5  Pick.  (Mass.)  232  (1827);  Ammel  v.  Noonar,  50 
Vt.  402  (1878).  Accord.  King  v.  Robinson,  Cro.  Eliz.  79  (15S7) ;  Anonymous. 
Godbolt,  154  (1008);  Powel  v.  Waterhouse,  Aleyn,  5  (1647);  Crawford  v. 
Morrell,  8  Johns.  (N.  Y.)  2.53  (1811).  Contra. 


294  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

W.  Va.  568.  *  *  *  f  his  was  done,  there  being  in  the  amended 
declaration  three  special  counts  and  the  common  counts. 

The  first  special  count,  after  reciting  that  the  plaintiffs  were  mer- 
chants engaged  in  selling  dry  goods  in  Parkersburg,  states  that  they 
made  a  contract  of  sale  with  the  defendant  in  September,  1871,  and 
that  in  the  sale  was  included:  First — The  entire  stock  of  goods 
contained  in  their  store  which  might  be  in  their  store  on  January  1, 
1872,  when  the  property  sold  was  to  be  delivered ;  Second — A  thou- 
sand dollars  worth  of  dry  goods  not  then  in  the  store  but  which  had 
been  bought  and  were  en  route  from  the  east;  Third — The  plaintiffs 
were  to  be  permitted  to  keep  up  their  stock  of  staple  goods ;  Fourth 
— They  were  required  to  run  down  the  stock  of  goods  as  low  as  pos- 
sible by  January  1,  1872;  Fifth — The  defendant  was  then  to  pay 
cost  prices  for  the  goods,  $1,000.00  in  cash  and  the  residue  in  six 
and  twelve  months  from  that  time.  The  plaintiffs  allege  that  they 
performed  all  that  was  required  of  them  under  this  contract,  and 
offered!  to  deliver  these  goods  to  the  defendant  on  January  1,  1872, 
and  incurred  a  cost  of  $100  in  making  an  inventory  preparatory 
to  delivering  these  goods. 

The  second  count  describes  the  property  sold  differently,  as,  First 
— All  the  dry  goods  in  the  store  on  January  1,  1872;  Second — The 
unexpired  term  of  the  lease  of  said  store.  It  also  differs  in  not  al- 
leging that  by  the  original  contract  the  plaintiffs  were  to  run  down 
by  January  1,  1872,  the  stock  of  goods  as  low  as  possible,  but  states 
that  by  a  modification  of  the  contract,  made  December  1,  1871, 
this  was  to  be  done  by  selling  off  the  goods  at  cost  prices. 

The  third  count  is  also  the  same  as  the  first  except  that  the  descrip- 
tion of  the  property  sold  is.  First — All  the  dry  goods  in  the  store  on 
January  1,  1,872;  Second— The  $1,000.00  of  new  dry  goods  then 
en  route  from  the  east.  As  the  breach  of  the  contract  by  the  de- 
fendant the  first  count  alleges,  that  the  plaintiff's  tendered  the  goods 
on  January  1,  1872,  and  the  defendant  refused  to  accept  or  receive 
them.  There  are  no  damages  laidi  at  the  end  of  this  count.  In  the 
second  and  third  counts  the  breach  is  the  same,  except  it  includes  that 
defendant  refused  to  pay  for  the  goods ;  and  damages  are  laid  at  the 
close  of  these  counts.  The  common  counts  concluded  in  the  usual 
manner,  thus :  "And  whereas  the  defendant  afterwards,  to  wit,  on  the 
5th  day  of  January,  1872,  at  the  county  aforesaid,  in  consideration 
of  the  premises  respectively  then  and  there  promised  to  pay  the  said 
several  sums  of  money  respectively  to  the  plaintiffs  on  request,  yet 
the  said  defendant  has  disregarded  his  said  promise  and  has  not  paid 
the  said  sums  of  money  or  any  part  thereof  to  the  said  plaintiffs,  or 
either  of  them,  although  often  requested  so  to  do,  to  the  damage  of 
the  plaintiffs  $2,000.00^    And  therefore  they  bring  this  suit." 

To  this  declaration  and  each  count  thereof  the  defendant  demurred, 
the  court  overruled  the  demurrer,  and  the  defendant  pleaded  non 
assumpsit.     The  jury  found  a  verdict  for  the  plaintiff  and  assessed 


Ch.  1)  SPECIAL   AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  295 

the  damages  at  $940.00  with  interest  from  January  1,  1872.  The 
court  overruled  a  motion  for  a  new  trial  made  by  the  defendant's 
counsel,  and  rendered  judgment  pursuant  to  this  verdict,  to  which 
the  defendant's  counsel  excepted,  and  the  court  certified  all  the  evi- 
dence in  the  case.     *     *     * 

The  following  eight  instructions,  numbered  from  two  to  nine  in- 
clusive, were  given  by  the  court  at  the  defendant's  instance,  and 
were  not  excepted  to  by  the  plaintiffs'  counsel ;     *     *     * 

"5th.  That  if  the  jury  believe  from  the  evidence  that  at  the  time 
of  making  of  the  original  contract  for  the  sale  and  purchase  of  said 
goods,  the  defendant  agreed  to  give  his  notes  or  a  note  for  the 
deferred  payment  or  payments  beyond  the  sum  of  $1,000.00,  then 
the  contract  is  not  proven  as  alleged  in  the  declaration,  and  the  plain- 
tiffs are  not  entitled  to  recover. 

"6th.  That  if  the  jury  believe  from  the  evidence  that  by  the  terms 
of  the  original  contract  the  defendant  agreed  to  pay  to  the  plaintiff's 
on  or  about  the  1st  day  of  January,  1872,  for  the  stock  of  goods 
in  the  declaration  mentioned  $1,000.00  cash  in  hand  and  the  balance 
in  six  and  twelve  months  therefrom,  and  that  afterw^ards  said  con- 
tract was  modified  so  that  the  defendant  and  the  plaintiffs  agreed 
that  the  defendant  should  give  his  notes  for  said  deferred  payments, 
then  the  plaintiff's  are  not  entitled  to  recover,  because  said  modifica- 
tion is  not  alleged  in  the  declaration.     *     *     * 

Green,  P.,*^  delivered  the  opinion  of  the  Court:  *  *  *  ^[^q 
circuit  court  erred  in  refusing  on  the  motion  of  the  defendant's  coun- 
sel, after  all  the  plaintiff's  evidence  had  been  introduced,  to  exclude 
from  the  jury  all  this  evidence,  because  the  contract  proven  thereby 
was  materially  variant  from  the  contract  alleged  and  set  forth  in 
any  count  in  the  plaintiff's  declaration.  In  tjiis  case,  w4ien  formerly 
before  this  Court,  it  was  decided,  that  in  actions  Tounded  on  special 
conlracrs  to  recoverllsmages  Tor  tHe~Tailure''aIid^~retusal''lo~"p¥ffofm  ' 
TlTe  same,  generaT!}'  the  entire  consideration  lTiirsT"Besfated,  and  the 
•^tire  act  to  be"~done  in  virtue  of  sucli  consideration;  and  that  gen- 
"  erally  in  actioiTS_on  special  j;ontrac,ts,  il_any  part  of  the  contract  vary 

materially  from  that  which   is   stated  in  the   declaration,   it    will  bF~ 
~^atal,  a  contract  being  an  entireTEing^  and  if  the  contract  proven  is"~" 
materiallv   variant    trom   tHat   described    in    the   declaration,    on  The" 
motion  of  the  defendant's  .courTsel  at  tt[e~close_of  the  p];iintirf's  _e^ 
dence  it  should  all  be  excluded   from  the  jtiry^but  tojiistify  such 
exclusion  the  variance   must  be^  manifest^^when  viewed  in   a  light  _ 

<3  Parts  of  the  statement  of  facts  and  of  the  opinion  are  omitted.  The 
conrt  hold,  in  the  portions  of  the  opinion  omitted,  that  the  specia'l  connts 
were  defective  for  reasons  discussed  In  later  cases  in  this  section;  that  the 
defendant's  promise  ■was  not  such  as  would  warrant  recovery  on  the  com- 
mon counts;  that  therefore  the  case  must  he  reversed.  They  also  pointed 
out  other  errors  to  guide  the  court  upon  a  new  trial.  The  part  of  the  opin- 
ion printed  concerns  these  other  errors. 

Whit.C.L.Pl.— 20 


296  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

most   favorable  to  the  plaintiff,  as  on  a  demurrer  to  evidence  by 
"the  defendant.^  See  8  W.  Va.  568. 

^  Twill  by  reference  to  some  adjudged  cases  illustrate  what  is  meant 
under  this  general  rule  by  materially  variant.  The  following  are  in- 
stances where  the  variance  was  deemed  material :  When  the  promise 
was  stated  to  take  away  the  potatoes  in  a  reasonable  time,  and  the 
proof  was  they  were  to  be  taken  away  within  a  month.  Hare  v. 
Milner,  1  Peake,  42.  So  when  the  declaration  stated  that  the  pur- 
chaser should  make  a  deposit  of  i. (not   stating  the  amount) 

and  the  proof  was  the  deposit  was  to  be  ten  per  cent.  Merters  v. 
Adcock,  4  Esp.  251.  The  following  are  instances  in  which  the  vari- 
ance was  adjudged  not  material  or  fatal.  *  *  *  jj^  Gladstone 
V.  Neale,  13  East,  410,  *  *  *  the  declaration  described  the  article 
sold  and  to  be  delivered  to  be  eight  tons  of  hemp.  It  was  proven 
that  the  article  sold  was  about  eight  tons  of  hemp,  and  when  weighed 
it  turned  out  to  be  just  eight  tons ;  and  therefore  the  court  held  that 
the  contract  in  effect  was  for  the  sale  of  that  precise  quantity,  and 
there  was  therefore  no  variance  between  the  declaration  and  the 
proof.  In  Welch  v.  Fisher,  8  Taunt.  338  (4  E.  C.  L.  122),  the  sale 
was  of  the  stock  of  a  soap-boiler  at  a  valuation,  which  the  declara- 
tion alleged  had  been  made  and  amounted  to  a  certain  sum,  but  the 
proof  showed  that  in  the  valuation  certain  pans  were  valued  as  sound, 
but  if  on  the  first  boiling  in  them  it  turned  out  that  any  of  them  were 
unsound,  a  deduction  was  to  be  made  from  the  valuation,  and  there 
was  no  proof  that  any  of  them  were  unsound.  The  court  held  that 
there  was  no  material  variation  between  the  declaration  and  the  proof. 
Within  the  spirit  of  these  decisions,  if  there  be  a  material  varia- 
tion in  describing  the  articles  sold  between  the  declaration  and  the 
proof,  such  variation  would  be  held  material  and  fatal  to  the  suit. 
A  comparison  of  the  property  sold  as  stated  in  each  of  the  several 
special  counts  with  the  property,  which  the  proof  showed  was  con- 
tracted to  be  sold  in  the  case  now  before  the  court,  will  show  that 
they  are  materially  variant.  A  material  portion  of  the  property  actu- 
ally sold,  as  shown  by  the  proof,  being  omitted  in  each  of  the  special 
counts.  No  one  of  the  special  counts  states  all  the  property  which 
the  proof  shows  was  sold ;  and  each  of  them  was  therefore  fatally 
defective  as  a  basis  on  which  a  verdict  could  be  rendered  -for  the 
plaintiff's,  though  all  the  property  sold  was  set  out  in  the  declaration, 
some  in  one  count  and  some  in  another.  But  the  statements  in  one 
count  cannot  supply  the  defects  in  another,  each  being  treated  as  a 
separate  cause  of  action.  The  court  ought  therefore  to  have  ex- 
cluded the  plaintiffs'  evidence  from  the  jury."**     But,  though  the  dec- 

4  4  Leeds  v.  Burrows,  12  East,  1  (1810);  Cross  v.  Bartlett,  3  M.  &  P.  537 
(1829);  Carrell  v.  Collins,  2  Bibb  (Ky.)  429  (ISIO);  Bromley  v.  Goff,  75  Mich. 
213,  42  N.  W.  810  (1889^  Colbiini  v.  Pomeroy,  44  N.  H.  19  (1862);  Lowrie  v. 
Brooks,  1  Nott  &  McC.  (S.  C.)  342  (1818).  Accord. 

If  the  pi'oof  of  consideration  is  variant  in  some  other  respect  from  the 
allegation,  the  rule  is  the  same.     Francam  v.  Foster,  Skin.  826  (1693);    Van- 


I 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  297 

laration  stated  that  the  excess  of  the  cost-value  of  the  goods  exceeding 
$1,000.00  was  to  be  paid  by  the  defendant  in  six  and  twelve  months, 
and  did  not  say  that  the  defendant  was  to  execute  his  notes  therefor 
to  the  plaintiffs,  and  the  proof  was  that  by  the  contract  he  was  to 
execute  such  notes  for  the  deferred  payments,  yet  this  would  not  be 
a  material  variance  or  fatal  to  the  plaintiffs'  case,  for  the  agreement 
to  give  the  notes  is  a  mere  stipulation  that  certain  evidence  should 
be  furnished)  of  the  obligation  of  the  defendant  under  the  contract; 
and  whether  they  were  to  be  given  or  not  w^ould  in  no  manner  alter 
or  change  the  real  and  substantial  liability  of  the  defendant  under 
the  contract.  Within  the  spirit  of  the  above  decisions  even  a  misde- 
scription in  the  declaration  of  the  time,  in  which  these  notes  were 
to  be  paid,  would  not  have  been  fatal  to  the  plaintiff's  cause,  for 
if,  as  alleged  in  the  declaration,  the  defendant  refused  to  accept  the 
goods  or  make  the  cash  payment,  and  thus  repudiated  the  entire 
contract,  he  would  be  as  much  liable,  if  the  notes  to  be  given  were 
payable  at  one  time  in  the  future  as  at  another,  the  time  in  which 
they  were  to  be  paid  being  thus  immaterial,  as  stated  in  the  special 
counts  in  the  declaration,  it  need  not  to  have  been  alleged  in  the  dec- 
laration, and  if  alleged,  need  not  be  proven  as  alleged,  though  the 
defendant  might  defend  himself  by  proving  that  he  would  not  ac- 
cept the  goods,  because  their  tender  was  accompanied  by  the  demand 
for  notes  for  the  deferred  payments  payable  at  a  diff"erent  time  from 
that  agreed  upon  when  the  contract  of  sale  was  made.  The  fifth  and 
sixth  instructions  asked  for  by  the  defendant  ought  not  to  be  again 
given,  if  objected  to  by  the  plaintiff,  as  they  do  not  lay  down  the 
law  correctly.*^     *     *     * 

The  other  judges  concurred. 

Judgment  reversed.     Cause  remanded. 

sandau  v.  Burt.  5  B.  &  Aid.  42  (1S21) ;  Fay  v.  Hall,  25  Ala.  704  (1S54) ;  Cur- 
lev  V.  Dean,  4  Conn.  259,  265,  10  Am.  Dec.  140  (1S22);  Colt  v.  Root,  17  Mass. 
229  (1S21);  Keves  v.  Dearborn,  12  N.  H.  52  (1841);  Stone  v.  Kuowlton,  3 
Wend.  (N.  Y.)  374  (1829);  McMillan  v.  Theaker,  12  Ohio,  24  (1S43) ;  Cunning- 
ham V.  Shaw,  7  Pa.  401  (1847);  Harris  v.  Harris,  23  Va.  431  (1824).  Accord. 
Hands  v.  Burton,  9  East,  349  (ISOS);  Dox  v.  Dey,  3  Wend.  (N.  Y.)  356  (lS29j. 
Contra. 

4  5  An  allocation  of  the  consideration  is  necessary.  Leneret  v.  Rivet,  Cro. 
Jac.  503  (1019) ;  Elsee  v.  Gatward,  5  T.  R.  143  (179.3) ;  Russell  v.  Slade,  12 
Conn.  455  (1S3S) ;  Connolly  v.  Cottle.  1  111.  364  (1830) ;  Wright  v.  Gilbert,  51 
Md.  146  (1879);  Murdock  v.  Caldwell.  2  Allen  (Mass.)  300  (1804);  Bailey  v. 
Freeman,  4  Johns.  (X.  Y.)  2S0  (1809)  ;  Southern  Ry.  Co.  v.  Willcox,  98  Va.  222. 
35  S.  E.  355  (1900);  Grover  v.  Ohio  River  R.  Co.,  53  W.  Va.  103,  44  S.  E.  147 
(1903). 

Allegations  insufficient  to  show  prima  facie  a  consideration  are  as  bad  as 
none.  Lee  v.  Mynne,  Cro.  Jac.  110  (1606);  Powell  v.  Brown,  3  Johns.  (N.  Y.) 
100  (1808);    Harding  v.  Cragie,  8  Vt.  501  (1836). 

If  the  consideration  alleged  is  past,  it  must  be  alleged  to  have  been  given 
at  request.  Hayes  v.  Warren,  2  Str.  932  (1732);  Jewett  v.  Somerset  County. 
1  Me.  125  (1820)  semble;  Comstock  v.  Smith,  7  Johns.  (N.  Y.)  87  (1810); 
Parker  v.  Crane,  6  Wend.  (N.  Y.)  647  (1831) ;  Stoever  v.  Stoever,  9  Serg.  & 
R.  (Pa.)  434,  454  (1823)  semble. 

It  has  been  held  that  it  must  expressly  appear  that  the  consideration  and 


298  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

WICKLIFFE  V.  HILL. 

(Court  of  Appeals  of  Kentucky,  1S15.     4   Bibb,  2G9.) 

Boyle,  C.  J.  This  case  was  formerly  before  this  Court  upon  a  writ 
of  error,  when  the  judgment  was  reversed  because  the  declaration 
contained  no  averment  of  the  consideration  upon  which  the  promise 
or  agreement  declared  on  was  founded;  and  the  cause  being  re- 
manded, the  declaration  was  amended  in  this  respect,  so  as  to  allege 
in  substance  that  the  promise  or  agreement  was  made  upon  a  valuable 
consideration,  but  without  stating  what  the  consideration  was.  To 
the  amended!  declaration  the  defendant  demurred,  and  pleaded  non 
assumpsit.  The  demurrer  was  overruled,  and  a  verdict  found  for 
the  plaintiff  upon  the  issue  joined  upon  the  plea.  Whereupon  a  judg- 
ment was  given  for  the  damages  assessed  by  the  jury,  to  which  this 
writ  of  error  is  prosecuted  by  the  defendant. 

Whether  an  averment  that  the  promise  was  made  for  a  valuable 
consideration,  without  setting  forth  the  consideration,  would  be  good 
after  verdict,  is  a  point  which  need  not  in  this  case  be  decided,  since 
the  question  occurred  upon  a  demurrer  which  was  not  afterward 
waived  by  the  party.  And  most  clearly  such  an  averment  is  insuffi- 
cient upon  a  demurrer;  for  it  is  well  settled,  that  wherever  a  con- 
siaeration  is  necessary  t'o  be  alleged,  it  should  be  set  forth  at  least 
"in  such  general  terms  that  the  Court  might  be  able  to  judge  whether 
it  was  a  legal  consideration  and  sufficient  to  support  the  pr^misS'~of 
"a^eement  declared  on^__ 

The  "judgmerrT  must,  therefore,  be  reversed  with  costs,  and  the 
cause  remanded  for  new  proceedings  not  inconsistent  with  the  fore- 
going opinion.^  ^ 


LANSING  V.  INIcKILLIP. 
(Supreme  Court  of  New  York,  1805.    3  Caines,  286.) 

Assumpsit,  on  a  special  agreement  in  consideration  of  a  horse, 
and  divers  goods  and  merchandises,  to  deliver,  for  value  received, 
forty  dollars  worth  of  merchantable  boards. 

At  the  trial  the  plaintiff  adduced  the  subscribing  witness  to  the 
note,  who  testified  that  the  horse  was  the  only  consideration.  Upon 
ihis  the  defendant  moved  for  a  nonsuit,  insisting  that  the  plaintiff 
was   bountl   to    prove   all    the   several    considerations,    as    laid.      The 

promise  were  exchanged.     Whitall  v.  :Morse,   5   Serg.  &  R.  (Pa.)  358  (1819); 
People's  Bank  v.  Adams,  43  Yt.  195  (1S70). 

4  6  Andrews  v.  Whitebead,  13  East,  102  (1810);  Wlnne  v.  Colorado  Springs 
Co.,  3  Colo.  155  (1S77);  Rossiter  v.  Marsh,  4  Conn.  196  (1S22)  semble;  Beau- 
cbamp  V.  Bosworth,  3  Bibb  (Ky.)  115  (181.3);  Kean  v.  Mitchell,  13  Mich.  207 
(1S65)  semble ;  McKee  v.  Bartley,  9  Pa.  189  (1848)  semble;  Marshall  v.  Aiken, 
25  Vt.  328  (1853);   Crawford  v.  Daigh,  4  Va.  521  (1826)  semble.  Accord. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  299 

judge,  ruling  to  the  contrary,  charged  in  favor  of  the  plaintiff,  for 
whom  the  jury  found.  The  application  now  was  to  set  aside  that 
verdict, 

Spencer,  J.*^  If  the  averment  of  a  consideration  on  a  note  like 
the  one  in  this  case  was  necessary,  then  the  plaintiff,  by  averring 
a  consideration  which  did  not  exist,  has  failed  in  his  proof ;  for  if 
_two  considerations  be  alleged-  -as.  Jdie-iouada^ioa-ef- -ar  promise,  5otb- 
must  be  proved.  Cro.  Jac.  503;  Esp.  Dig.  133,  139.  If,  however, 
the  admission  oT  value  by  this  paper  is  of  itself  sufficient,  then  the 
averment  of  a  consideration  would  be  surplusage,  and  might  have  been 
struck  out  on  motion,  and  therefore  cannot  vitiate.    Doug.  666. 

That  the  present  is  not  a  promissory  note  within  the  statute  will 
not  be  disputed;  it  is,  therefore,  a  promise  which  can  only  be  en- 
forced on  the  ground  of  a  consideration ;  and  though  value  is  ad- 
mitted to  be  received,  it  does  not  supersede  the  necessity  of  averring 
the  consideration,  that  the  court  may  see  that  it  is  of  that  kind  and 
nature  to  sustain  the  promise.  Prior  to  the  statute  of  3  and  4  Anne, 
c.  9,  no  action  could  be  maintained  expressly  on  a  note,  even  for  the 
payment  of  money,  without  declaring  on  it  as  a  special  agreement,  and 
setting  forth  the  consideration.  The  case  of  Carlos  v.  Fancourt,  5  D. 
&  E.  482,  contains  the  whole  law  on  this  subject;  and  there  the 
court  unanimously  held,  that  in  declarations  on  notes  not  within  the 
statute,  they  were  to  be  regarded  as  special  agreements,  and  the  con- 
sideration was  necessary  to  be  set  out.  In  my  opinion,  the  defend- 
ant is  entitled  to  a  new  trial. 

Livingston,  J.  This  action  being  brought  on  a  note  by  which  the 
defendant  acknowledges  his  having  received  value  for  the  promise 
he  makes,  it  was  not,  in  my  opinion,  necessary  to  prove  any  consid- 
eration, nor  should  the  defendant  have  been  permitted  to  show  that 
it  was  incorrectly  set  forth,  unless  he  were  able  to  impeach  it  on  the 
ground  of  fraud,  turpitude,  or  illegality.  It  is  superfluous,  as  well 
as  dangerous,  to  require  proof  of  the  consideration  of  an  undertaking 
in  writing,  when  a  valuable  one  is  acknowledged  under  the  signature 
of  the  party  himself.  It  is  asking  what  rarely  can  be  complied  with. 
How  seldom  is  it  that  the  whole  consideration  appears  on  the  face 
of  a  contract;  or  that  even  a  subscribing  witness  knows  anything 
of  it ;  or  if  he  did,  how  easily  might  it  escape  the  memory,  or  such 
proof  be  lost,  by  death  or  other  accident !  So  long,  then,  as  it  is  per- 
mitted to  set  up  any  unlawful  consideration,  it  is  all  that  can  rea- 
sonably be  asked,  and  no  one  can  complain  that  his  own  acknowledg- 
ment is  regarded  as  evidence,  at  least  prima  facie,  of  one  that  is 
fair  and  valuable.  The  motion  to  non-suit  was  therefore  properly 
overruled  by  the  Chief  Justice ;  for  here  was  not  only  a  considera- 
tion acknowledged  under  the  defendant's  hand,  but  his  receipt  of  a 

4  7  The  concurring  opinions  of  Thompson,  J.,  and  Kent,  C.  J.-  are  omitted, 
as  well  as  part  of  the  opinion  of  Livingston,  J. 


300  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

horse  actually  proved.  Under  these  circumstances,  it  would  be  doing 
great  injustice  to  listen  to  the  present  application,  merely  because 
an  additional  consideration  alleged  in  the  declaration,  which  may  be 
regarded  as  surplusage,  and  the  want  of  which  constituted  no  de- 
fence, could  not  be  proved,  or  was  disproved.  No  case  has  yet  gone 
this  length,  and  I  should  require  a  series  of  decisions  to  satisfy  me 
of  the  propriety  or  necessity  of  so  much  strictness.  *  *  *  j  know 
not  of  a  single  decision,  rendering  it  necessary,  on  a  contract  of  this 
nature  to  prove  a  consideration.  *  *  *  j  know  it  to  be  a  gen- 
eral and  wholesome  principle,  that  contracts  must  be  made  on  some 
consideration,  and  that  ex  nudo  pacto  non  oritur  actio ;  but  the  ques- 
tion still  recurs,  who  is  to  prove,  in  a  case  of  this  kind,  the  nakedness 
of  the  contract,  or  its  want  of  consideration?  The  same  law,  which 
requires  this  quid  pro  quo  in  a  contract,  does  not  demand  an  absolute 
equivalent,  but  is  satisfied,  in  many  cases,  with  the  most  trifling  ground 
that  can  be  imagined.  Why  not  then  be  content,  in  point  of  evidence, 
with  a  declaration  under  the  hand  of  the  party,  that  he  has  received  a 
valuable  one,  without  indulging  the  useless  curiosity  of  prying  fur- 
ther into  the  transaction?  Why  so  very  careful  of  the  defendant's 
rights  as  not  to  suppose  him  capable  of  judging  for  himself  what 
was  an  adequate  value  for  his  promise?  Would  it  not  be  more  just, 
and  better  promote  the  ends  of  justice,  that  one  who  had  signed  an 
instrument  of  this  kind  should,  without  further  proof,  be  compelled 
to  perform  it,  unless  he  could  impeach  the  validity  on  other  grounds? 
*  *  *  But  without  disturbing  any  of  the  distinctions,  which  for 
ages  have  existed  between  these  contracts,  no  adjudged  case  can  be 
found  repugnant  to  my  conclusion.  *  *  *  In  the  case  of  Carlos 
V.  Fancourt,  5  D.  &  E.  482,  I  will  only  say,  that  nothing  like  the 
present  question  occurred.  The  plaintiff  had  declared  on  a  note  of 
hand,  payable  on  a  certain  contingency,  as  on  a  note  within  the  stat- 
ute of  Anne,  and  that  it  was  not  so  was  the  single  point  determined. 
No  latitude  of  expression,  therefore,  in  which  the  judges  may  have 
indulged!  on  points  not  before  them,  could  have  the  effect  of  settling 
the  law,  even  in  England.  Unfettered,  then,  by  any  decision,  as  to 
what  shall  be  received  as  evidence  of  the  consideration  of  notes  of 
this  description,  I  have  little  hesitation  in  saying  that  it  ought  never 
to  be  necessary  to  prove  the  consideration  of  a  contract,  although 
stated  in  the  declaration,  where  a  party  has  acknowledged  in  writ- 
ing that  it  was  made  for  value,  in  any  other  way  than  by  a  production 
and  proof  of  the  instrument  itself ;  and  that  the  defendant  ought 
not  to  be  allowed!  to  show  that  it  was  made  on  any  other,  unless  it 
be  of  a  nature  to  destroy,  or  in  any  manner  affect  its  validity.  This 
is  no  more  than  is  done  in  actions  of  trover,  in  which,  although  a 
loss  and  finding  be  alleged  in  a  declaration,  proof  of  neither  is  re- 
quired :  where,  then,  the  extravagance  of  alleging  any  legal  consid- 
eration to  comply  with  the  usual  form  of  declaring,  and  letting  it  be 
inferred  from  the   production  of  a  note   which   admits  on  the   face 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  301 

a  valuable  one?  Good  sense  would  suggest  the  propriety  of  going 
further,  and  saying  that  such  a  note  might  be  declared  on  as  a  spe- 
cialty, without  alleging  any  consideration,  only  leaving  to  the  de- 
fendant the  same  right  of  investigating  its  legality  or  failure.  Such 
an  innovation,  however,  in  the  form  of  declaring,  should  not  be  in- 
troduced without  much  deliberation  on  the  consequences  it  might 
produce.  The  plaintiff  is,  in  my  opinion,  entitled  to  the  postea. 
Verdict  set  aside,  and  new  trial  granted.*^ 


FERGUSON  v.  CAPPEAU. 

(Court  of  Appeals  of  Maryland,  1S25.     6  Har.  &  J.  394.) 

Appeal  from  Baltimore  county  court.  This  was  an  action  of  assump- 
sit, instituted  by  Charles  Cappeau,  the  appellee's  intestate,  against  the 
appellant,  to  recover  the  value  of-  four  cases  and  three  bales  of  dry 
goods,  shipped  on  board  a  vessel  of  the  appellant,  called  the  Cecil,  by 
the  said  intestate,  to  be  transported  for  freight  from  Baltimore  to  Nor- 
folk, and  which  the  declaration  alleges  were  wholly  lost  by  the  neg- 
ligence of  the  appellant.     *     *     * 

Buchanan,  C.  J.,***  delivered  the  opinion  of  the  court.     *     *     * 

The  fourth  objection,  that  there  is  a  variance  between  the  declara- 
tion and  the  contract  proved,  arises  out  of  the  general  prayer  to  the 
court  in  each  bill  of  exceptions,  to  instruct  the  jury,  that  the  plaintiff 
was  not  entitled  to  recover. 

It  is  a  settled  rule  in  pleading,  that  in  an  action  founded  upon  a  con- 
tract, if  there  be  in  the  contract  a  proviso  or  condition  which  operates 
only  in  defeasance  of  it,  or  merely  respects  the  liquidation  of  dam- 
ages after  a  right  to  them  has  arisen  by  a  breach  of  the  contract,  it  is 
not  necessary  to  be  stated  in  the  declaration,  but  should  come  from  the 
other  side ;  but  that  if  there  be  a  condition  precedent,  or  a  proviso  or 
other  matter  which  qualifies  the  contract,  or  goes  in  discharge  of  the 
liability  of  the  defendant,  it  must  be  stated.     *     *     * 

The  bill  of  lading  in  this  case  has  an  exception  "of  the  dangers  of 
the  seas,"  which  does  not  merely  respect  the  amount  of  damages  to  be 

4  8  Jerome  v.  WTbitney,  7  Johns.  (X.  Y.)  321  (1811).  Accord. 

It  lias  been  held  that,  if  the  declaration  states  that  the  promise  in  writ- 
ing was  "for  value  received,"  it  is  sood.  Jerome  v.  Whitnev,  7  Johns.  (N. 
Y.)  321  (ISll) ;  Walrad  v.  Petrie,  4  Wend.  (N.  Y.)  575  (1S30).  Accord.  Blanck- 
enhagen  v.  Blundell,  2  B.  &  Al.  417  (1819)  semble.  Contra. 

If  the  declaration  simply  states  that  the  writing  contained  the  words  "for 
value  received,"  it  is  bad.  Blanckenhagen  v.  Blundell,  2  B.  &  Al.  417  (1819) ; 
Gains  v.  Kendrick,  2  Mill,  Const.  (S.  C.)  339  (ISIS).  Accord.  Leonard  v. 
Sweetzer,  16  Ohio,  1  (1847 :  on  the  ground  apparently  that  consideration  is 
unnecessary  for  such  an  instrument).  Contra. 

In  a  declaration  on  a  bill  or  note  within  the  law  merchant,  no  allegation 
of  consideration  is  necessary.    14  PI.  &  Pr.  480;    8  Cyc.  109. 

4  8  Statement  of  facts  abridged,  and  part  of  opinion  omitted. 


302  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

recovered,  but  it  limits  and  restrains,  it  changes  the  general  obligation, 
and  qualifies  the  particular  contract,  of  which  it  is  as  much,  and  as 
material  a  part,  as  any  clause  in  it,  and  the  general  obligation  being 
thus  restricted,  the  appellant,  as  owner,  is  only  answerable  on  his  spe- 
cial undertaking,  as  evidenced  by  the  bill  of  lading.  What  then  is  that 
special  undertaking?  Why,  to  deliver  the  goods  in  good  order  and 
condition  at  the  port  of  Norfolk,  the  dangers  of  the  seas  only  excepted ; 
not  a  general  undertaking  at  all  events  to  deliver  them,  but  only  to 
deliver  them,  if  not  prevented  by  the  dangers  of  the  seas,  a  strictly 
qualified  contract;  and  the  declaration  charges  a  general  undertaking 
to  transport  the  goods  safely  and  securely  to  Norfolk,  and  there  to 
deliver  them  to  the  appellee,  without  any  restriction  or  qualification. 
The  plea  is  non  assumpsit,  denying  the  contract  as  laid  in  the  declara- 
tion, against  which  alone  the  appellant  comes  to  defend  himself,  and 
the  bill  of  lading  showing  a  different  and  qualified  undertaking,  is 
produced  in  evidence  by  the  appellee. 

It  is  an  established  general  rule,  that  when  the  contract  proved 
varies  from  that  stated  or  described  in  the  declaration,  the  plaintiff 
must  be  nonsuited. 

The  contract  proved  here  is  essentially  different  from  that  declared 
upon,  and  we  think  the  variance  fatal.     *     *     * 

Judgment  reversed,  and  procedendo  awarded.^** 


INDEPENDENT  ORDER  OF  MUTUAL  AID  v.  PAINE. 

(Appellate  Court  of  Illinois,  1SS5.     17  111.  App.  572.) 

Error  to  the  Circuit  Court  of  La  Salle  county;  the  Hon.  George 
W.  Stipp,  Judge,  presiding.    Opinion  filed  December  4,  1885. 

Baker,  J.  This  was  assumpsit  by  defendant  in  error  against  plain- 
tiff in  error,  upon  a  beneficiary  certificate  issued  by  the  latter  and  pay- 
able to  defendant  in  error,  in  case  of  the  death  of  Lucius  B.  Paine,  her 
husband. 

A  general  demurrer  to  the  declaration  was  overruled  by  the  court; 
and,  thereupon,  a  final  judgment  was  rendered  in  favor  of  defendant 
in  error  for  $2,360  and  costs. 

The  circuit  court  erred  in  not  sustaining  the  demurrer  to  the  declara- 
tion. Where  the  performance  of  the  defendant's  contract  depends  on 
some  _kcL^-43£^-dan£_Jir_jorb<gneI^y7Tte  plaiiUjjT^_ur  on  suuie  uLliei 
e'ventTjhe  plaintiff'  must  ayetLthe  fulfillment  of_ such  condition  prec£d- 
ent7 whether  it  is in_tlie aJSirmalivLeor  negative,  or  to  be  performed  or 
'    observed  by  the  plaintiff  or  by  the  defendanFor  by  any  other  person, 

5  0  Mustard  v.  Hopper,  Cro.  Eliz.  149  (loSQ) ;  Bunnel  v.  Talntor,  5  Conn. 
273  (1S24);  Myrick  v.  Merritt,  22  Fla.  335,  342  (1SS6);  Rockford  Ins.  Co.  v. 
Nelson,  65  111.  415  (1S72) ;  Smith  v.  R.  R.,  36  N.  H.  458,  488,  495  (185S)  semble; 
Trenton  City  Bridge  Co.  v.  Perdiearis,  29  N.  J.  Law,  367  (1862);  Wilson  v. 
Smith,  5  Yerg.  (Tenn.)  379,  400  (1825).  Accord. 


4 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  303 

or  mustshow_  some  excuse  for  the  non-perfQimanrp"^  1  Chitty,  PI. 
''ppr~32Crand  321;  People  v.  Glann,  70  111.  232.  In  this  case,  by  the 
terms  of  the  contract,  the  sum  insured  was  payable  only  upon  due  no- 
tice and  satisfactory  proof  of  the  death  of  Lucius  B.  Paine;  and  it 
does  not  appear  from  the  declaration  that  proofs  of  death  were  either 
furnished  or  waived.  So,  also,  the  averments  in  the  declaration  show 
that  the  promise  of  plaintiff  in  error  was  to  pay  the  $2,000,  upon  the 
surrender  of  the  beneficiary  certificate,  legally  receipted;  but  the 
declaration  fails  to  allege  either  such  surrender,  or  an  offer  or  readi- 
ness to  surrender,  or  any  matter  of  excuse.  The  rule  of  pleading  is, 
that  where  there  are  mutual  conditions  to  be  peFtormed  at  the  same 
time,  the  plamtitFlmist  aver  performance  or  a  rendine^c;  to  perform  his 
or  her  part  ot  the  contract!!.   1  Chitty,  PI.  pp.  321  and  322.    In  the 

51  The  cases  accord  are  numerous.  See  9  Cyc.  719.  722;  4  PL  &  Pr.  628. 
The  rule  applies  to  express  conditions.  Fay  v.  Hall.  25  Ala.  704  (1854) ;  My- 
rick  V.  Merritt,  22  Fla.  335,  342  (1886);  Meyers  v.  Phillips,  72  111.  400  (1874). 
To  conditions  implied  by  law  from  the  promise  of  the  plaintiff.  Carrell  v. 
Collins,  2  Bibb  (Ky.)  429  (1811);  Murdock  v.  Caldwell,  8  Allen  (Mass.)  309 
(1864 :  both  express  and  implied) ;  Carroll  County  v.  Collier,  63  Va.  302 
(1872).  To  conditions  imposed  by  law  independent  of  anything  contained  in 
the  plaintiff's  promise.  Stephens  v.  De  Medina,  4  Q.  B.  422  (1843 :  that 
buyer  prepare  and  tender  a  conveyance);  Bank  v.  Ellis,  161  Pa.  241.  28  Atl. 
1082  (1894:  presentment  and  notice  to  charge  an  indorser);  James  v.  Adams, 
16  W.  Va.  245,  258  (1880:  notice  required  because  plaintiff  had  better  in- 
formation than  defendant).  Also  to  conditions  not  to  he  performed  by  the 
plaintiff.  Kingsley  v.  Bill,  9  Mass.  198  (1812);  Bruen  v.  Ogden,  18  N.  J. 'Law, 
124  (1840). 

When  request  is  really  a  condition  precedent,  the  allegation  "although 
often  requested"  will  not  suffice.  Selman  v.  King,  Cro.  Jac.  183  (1608) ;  Bach 
V.  Owen,  5  T.  R.  409  (1793);  Byrd  v.  Cummins,  3  Ark.  592  (1841).  Accord. 
But  see  Forrest  v.  Jones,  7  Ala.  493  (1845). 

•"  The  cases  to  this  effect  are  also  numerous.  See  6  PI.  &  Pr.  636;  9  Cyc. 
720,  723. 

The  plaintiff  must  allege,  not  merely  readiness  and  willingness  to  perform, 
but  an  offer  to  perform.  Sanford  v.  Cloud,  17  Fla.  532,  .549  (18S0 :  covenant); 
Caldwell  v.  Richmond,  64  111.  30  (1872:  debt  on  a  specialty)  semble;  Van 
Kirk  V.  Talbot,  4  Blackf.  (Ind.)  367  (1837:  covenant):  Kendal  v.  Talbot,  2 
Bibb  (Ky.)  614  (1812:  covenant);  McChord  v.  Tomlln,  3  Dana  (Ky.)  144 
(183.5);  Kane  v.  Hood,  13  Pick.  (Mass.)  281  (1S32);  Ackley  v.  Richman,  10  N, 
J.  Law,  304  (1829);  Chew  v.  Egbert,  14  N.  J.  Law,  446  (1834);  Green  v.  Reyn- 
olds, 2  Johns.  (N.  Y.)  207  (1807:  covenant);  Johnson  v.  Wygant,  11  Wend. 
(N.  Y.)  48  (1833:  covenant);  Williams  v.  Healey,  3  Denio  (N.  Y.)  363  (1846: 
covenant);  Campbell  v.  Gittings,  19  Ohio,  347  (1850:  required  not  only  offer, 
but  tender);  Jones  v.  Marsh,  22  Vt.  144,  148  (1850)  semble;  Rober'tson  v. 
Robertson,  24  Va.  68  (1824:  covenant).  Accord.  Levy  v.  Ld.  Herbert,  7  Taun. 
314  (1817 :  but  declaration  alleged  defendant's  refusal) ;  Boyd  v.  Lett.  1  C.  B. 
222  (1845 :  but  declaration  alleged  notice  to  defendant  of  plaintiff's  readiness 
and  willingness);  Low  v.  Marshall,  17  Me.  232  (1840:  under  allegation  of 
readiness  and  willingness  must  prove  offer ;  debt  on  specialtv)  semble  ;  North 
v.  Pepper,  21  Wend.  (N.  Y.)  636  (1839:  same  as  last,  except  covenant)  semble: 
Robinson  v.  Tyson,  46  Pa.  286,  292  (1863:  possibly  also  requiring  demand  that 
defendant  perform);  Moss  v.  Stipp,  17  Va.  159  (i811.)  Contra.  "The  following 
cases,  often  also  cited  as  contra,  seem  distinguishable:  Rawson  v.  Johnson,  1 
East,  203  (1801:  leading  case);  Waterhouse  v.  Skinner.  2  B.  &  P.  447  (1801)  ; 
Bristow  V.  Waddlugton,  2  B.  &  P.  N.  R.  355  (1806);  Jackson  y.  Allowav,  6  M. 
&  G.  942  (1844);  Smith  v.  Lewis,  26  Conn.  110,  118  (1857);  Funk  v.  Hough, 
29  111.  145  (1862);    West  v.  Emmons,  5  Johns.  (N.  Y.)  179  (1809). 


304  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

case  of  Mass.  Mut.  Life  Ins.  Co.  v.  Kellogg,  82  111.  614,  it  is  held,  that 
in  order  to  sustain  an  action  on  a  life  insurance  policy,  upon  general 
demurrer,  or  rnotion  in  arrest,  or  on  error,  the  declaration  must  show 
the  making  of  the  policy,  the  conditions  of  the  contract,  the  perform- 
ance of  all  conditions  that  plaintiff  is  bound  to  show  were  performed 
and  the  happening  of  the  contingencies  upon  which  defendant  becomes 
liable  to  pay,  and  the  failure  of  defendant  to  pay. 

For  the  error  indicated,  the  judgment  is  reversed,  and  the  cause  re- 
manded, with  instructions  to  sustain  the  demurrer  to  the  declaration. 

Reversed  and  remanded.^^ 


PARKER  V.  PALMER. 

(Court  of  King's  Bench,  1821.    4  Barn.  &  Aid.  387.) 

Declaration  stated,  that  defendant  bargained  for  and  bought  of  the 
plaintiff's ;  and  the  plaintiffs,  at  the  request  of  the  defendant,  sold  to 
the  defendant  a  certain  quantity,  viz.  1,826  bags  of  East  India  rice, 
at  the  rate  of  13s.  6d.  for  each  and  every  hundred  pounds'  weight 
thereof,  according  to  the  conditions  of  sale  of  the  East  India  Company, 
prompt  in  three  months,  deposit  £  10.  per  cent.,  to  be  put  up  at  the 
next  East  India  Company's  sale  by  the  proprietors,  if  required,  and 
in  consideration  of  the  premises  and  that  plaintiffs,  at  the  request  of 
the  defendant,  had  undertaken  and  faithfully  promised  to  deliver  to 
the  defendant  the  rice,  upon  the  terms  and  conditions  aforesaid,  when 
they  should  be  requested;  the  defendant  undertook  to  accept  the  rice 
of  plaintiffs,  and  to  pay  them  for  the  same.  Breach,  that  the  defend- 
ant, although  requested,  and  although  the  time  for  the  defendant  to 
have  accepted  .and  paid  for  the  rice,  upon  the  terms  and  conditions 
aforesaid,  had  long  since  elapsed,  had  not  accepted  the  same.  Counts 
for  goods  sold  and  delivered,  goods  bargained  and  sold.  Plea,  non 
assumpsit. 

At  the  trial  before  Abbott,  C.  J.,  at  the  London  sittings  after  last 
Michaelmas  term,  it  appeared  that  the  plaintiffs,  merchants  in  London, 
had  employed  Dubuisson  and  Co.,  brokers,  to  sell  a  quantity  of  ESst 

53  Pierson  v.  Springfield  Fire  &  Marine  Ins.  Co.,  7  Houst.  (Del.)  307,  310, 
323,  31  Atl.  966  (1SS5 :  court  evenly  divided);  Dolhier  v.  Insurance  Co.,  67 
Me.  ISO  (1877);  St.  Louis  Co.  v.  Kyle,  11  Mo.  278,  2.^9,  49  Am.  Dec.  74  (1848: 
covenant — held  allegation  must  be  proved);  Inman  v.  Western  Fire  Ins.  Co., 
12  Wend.  (N.  Y.)  452  (1834:  covenant);  Farrell  v.  American  Employers'  Lia- 
bility Co.,  68  Vt.  136,  143,  34  Atl.  478  (1896)  semble;  Quarrier  v.  Ins.  Co., 
10  W.  Va.  507,  524,  27  Am.  Rep.  582  (1877).  Accord. 

So  the  plaintiff  must  allege  the  payment  of  premiums.  Farrell  v.  Amer- 
ican Employers'  Liability  Co.,  68  Vt.  136,  143,  34  Atl.  478  (1896:  at  least 
held  plaintiff  must  prove  it).  Accord.  Assembly  v.  McDonald,  59  N.  J.  Law, 
248,  35  Atl.  1063  (1896 :    under  statute).  Contra. 

So  the  plaintiff  must  allege  compliance  with  a  condition  precedent  for  ar- 
bitration.   Lamson  v.  Ins.  Co.,  171  Mass.  433,  50  N.  E.  943  (1898). 

He  must  also  allege  a  loss  within  the  terms  of  the  policy.  Louisville  Ins. 
Co.  V.  Bland,  9  Dana  (Ky.)  143  (1839)  semble. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  305 

India  rice,  and  that  they,  in  pursuance  thereof,  on  the  15th  of  May, 
1820,  sold  to  the  defendant  a  quantity  of  rice  under  the  followini^  con- 
tract :  "Bought,  by  order  and  for  account  of  Mr.  A.  Palmer,  of  Messrs. 
Parker  and  Co.,  ex  Hadlow,  per  sample,  1,826  bags  East  India  rice,  at 
13s.  6d.  per  cwt..  Company's  conditions,  prompt  three  months,  deposit 
£  10.  per  cent.,  to  be  put  up  at  the  next  East  India  sale  by  the  pro- 
prietors, if  required."     *     *     * 

It  was  objected  at  the  trial  that  there  was  a  variance  in  the  contract 
declared  on  and  that  given  in  evidence ;  inasmuch  as  the  latter  was 
a  contract  for  rice  per  sample,  whereas  the  contract  stated  in  the  dec- 
laration was  for  rice  generally.  The  Lord  Chief  Justice  overruled 
the  objection,  but  gave  the  defendant  leave  to  move  to  enter  a  nonsuit. 

The  verdict  was  found  for  the  plaintiffs ;  and  a  rule  nisi  for  enter- 
ing a  nonsuit  or  a  new  trial  having  been  obtained,  on  the  objections 
taken  at  the  trial  in  last  Hilary  term. 

Abbott,  C.  J.^*  I  am  clearly  of  opinion,  that  there  ought  not,  in 
this  case,  to  be  a  nonsuit  on  the  ground  of  variance.  The  words  per 
sample,  introduced  into  this  contract,  may  be  considered  to  have  the 
same  effect  as  if  the  seller  had,  in  express  terms,  warranted  that  the 
goods  sold  should  answer  the  description  of  a  small  parcel  exhibited 
at  the  time  of  the  sale.  Now  if  there  had  been  such  an  express  war- 
ranty in  this  case,  I  should  be  of  opinion  that  the  plaintiff  would  not 
be  bound  to  set  it  out  in  his  declaration,  for  he  is  only  bound  to  set 
out  the  contract  for  the  breach  of  which  he  declares.  The  words  per 
"sample  are  nofaTdescription  of  the  commodity  sold,  but  a  mere  collat- 
eral engagement  on  the  part  of  the  seller,  that  it  shall  be  of  a  particular 
quality;  the  breach  of  that  engagement  may  furnish  a  matter  of  de- 
fense to  the  defendant,  but  the  plaintiff  does  not  rely  on  it,  and  need 
not  state  it  in  his  declaration.  *  *  *  j  think,  therefore,  that  there 
is  no  ground  either  for  a  nonsuit  or  a  new  trial,  and  that  this  rule 
ought  to  be  discharged. 

Rule  discharged.^^ 

5  4  Statement  of  facts  abridged,  and  parts  of  the  opinion  of  Abliott,  C.  J.,  as 
well  as  of  the  concurring  opinions  of  Holroyd  and  Best,  JJ.,  are  omitted. 

5  5  Clark  V.  Grey,  6  East,  564  (1S05) ;  McRae  v.  Raser,  9  Port.  (Ala.)  122 
(1S39);  Brenan  v.  Slielton,  2  Bailey  (S.  C.)  152  (1S31) ;  Buckstaff  v.  Russell, 
151  U.  S.  626,  632,  14  Sup.  Ct.  448,  38  L.  Ed.  292  (1S93).  Accord. 

The  same  rule  applies  to  conditions  subsequent  in  form,  though  precedent 
in  effect.  Welch  v.  Fisher,  8  Taun.  33S  (ISIS);  Jones  v.  Clark,  3  Q.  B.  194 
(1842).  Apparently  also  to  real  conditions  subsequent.  Rockford  Ins.  Co.  v. 
Nelson.  65  111.  415  (1872)  semble;  Ferguson  v.  Cappeau,  6  Har.  &  J.  (Md.) 
394,  401  (1825)  semble. 

These  questions  have  arisen  most  often  in  connexion  with  suits  on  insur- 
ance policies,  and  the  authorities  there  sustain  the  same  principles.  Loiuis- 
bury  V.  Insurance  Co.,  8  Conn.  459,  466,  21  Am.  Dec.  686  (1831:  conditions 
subsequent  in  form  and  provisos) ;  Jacobs  v.  Insurance  Co.,  1  McArthur  (D. 
C.)  632.  639  (1874:  statements  in  application);  Tillis  v.  Insurance  Co.,  46  Fla. 
268,  277,  35  South.  171,  110  Am.  St.  Rep.  S9  (1903:    condition  subsequent  in 


306 


PLEADINGS   IN   CONTRACT   ACTIONS 


(Part  2 


KERN  V.  ZEIGLER. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1S78.    13  W.  Va.  707.) 

Johnson,  J,,  delivered  the  opinion  of  the  Court:  ^® 

The  only  questions,  presented  in  this  case,  arise  on  the  demurrer  to 
the  declaration,  and  to  each  count  thereof.     *     *     * 

It  is  here  objected,  that  the  first  count  is  fatally  defective,  "because 
the  ahegatmn  of  perfoniTa^ce  of  J:h£_xQV£na.nt  on  the  part-of  tlie~pIimZ' 
TifFis  general."     It  is  insisted,  that  the  declaration  on  its  face  ,sliQuld- 
■^rave^pointe^  out  specifically  the  tirneand  manner,  in  which^he  plain- 
~Ei1F~h adr  p e r f o r m ed^hts  covenant s . 
j^Tn  some  of~l:he~STaIes~rnTas  been  held,  that  an  allegation  of  general 
performance  by  the  plaintiff^js_msuffi£ieriL;_J:illt  in  England  it  is  held 
"  that  such  allegation  of  performance  is-snfficient.     3  Rob.  Prac.  578, 
and  cases  cifed^    Mr.  Robinson,  p.  578,  says:   '^t  is  not  denied  in  New. 
York,  that,  when  a  condition  precedent  lies  by  the  covenant  itself  in  a 
clefinite~irnd  certain  fo rm^^o  definite,  that  it  need  not  be  made  more 
'retain  tor  thF]purpo"se  of  pleading,  then  it  is  enough  to  say  generally, 
that  the  party  has  pertormed  it,  according  to  the  intent  and  meani n g 
'  of  theagreement,  it  the  conditions,  as  contained  ^r^  that    wprp  tnify 
stated ;   and  so  of  any  number  of  acts  by  way  of  precedent  condition. 
'  Wright  V.  Tuttle,  4  Day  (Conn.)  313;   Glover  v.  Tuck,  24  Wend.  (N. 
Y.)  162.     But  this  it  is  said  by  Cowen,  Judge,  is  rarely  so."     In  New 
York  in  a  number  of  cases  it  has  been  held,  that  it  is  not  enough  to 
allege  performance  generally.     In  Virginia,  as   far  as   I  have  been 
able  to  find,  there  has  been  no  adjudication  of  this  precise  question; 
and  the  question  has  never  been  passed  upon  by  this  Court. 

While  it  is  a  general  rule  in  pleading,  that  whatever  facts  are  nec- 
essary to  constitute  the  cause  of  action  must  be  directly  and  distinctly 
stated,  yet  there  has  been  much  controversy  as  to  the  particularity, 
with  which  such  facts  should  be  stated.     *     *     * 

We  think  even  at  common  law,  where  the  declaration  sets  forth  par- 
form,  irou  safe  clause ;  covenant) ;  Howard  Co.  v.  Cornick.  24  111.  4-55  (1S60: 
condition  subsequent  in  form  for  replacing  property;  covenant);  ^Etna  Cq.  v. 
Phelps,  27  111.  71,  81  Am.  Dec.  217  (1SG2 :  same  as  last);  Ilerron  v.  Insurance 
Co.,  28  111.  235,  81  Am.  Dec.  272  (1862:  statements  in  application;  covenant); 
Clay  Ins.  Co.  v.  Wusterhausen,  75  111.  285  (1874 :  condition  subsequent  in 
form  as  to  change  of  title ;  covenant) ;  Knickerbocker  Co.  v.  Tolman,  80  111. 
106  (1875:  proviso  as  to  other  insurance);  Continental  Co.  v.  Rogers,  119  111. 
474,  485,  10  N.  E.  242,  59  Am.  Rep.  810  (1887-:  warranties,  representations, 
etc.)  semble;  Forbes  v.  Insurance  Co.,  15  Gray  (Mass.)  249,  257,  77  Am.  Dec. 
360  (1860:  conditions  subsequent,  applies  generally);  WTiipple  v.  United  Fire 
Ins.  Co.,  20  R.  I.  260,  38  Atl.  498  (1897:  same  as  last);  London  &  L.  Fire 
Ins.  Co.  V.  Crunk,  91  Tenn.  376.  23  S.  W.  140  (1892:  condition  subsequent 
in  form  as  to  falling  of  building) ;  Cooledge  v.  Continental  Ins.  Co.,  67  Vt. 
14.  30  Atl.  798  (1894:  generally,  on  ground  that  are  provisos) ;  Powers  v. 
Insurance  Co.,  68  Yt.  390,  35  Atl.  331  (1896:  generally  on  ground  that  are 
conditions  subsequent). 

5  6  Statement  of  facts  and  part  of  opinion  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  307 

ticularly,  what  the  plaintiff  was  required  to  do  by  the  covenant,  and 
those  things  are  matters  of  fact  only,  that  an  allegation  in  general 
form,  that  the  plaintiff  "has  performed  all  things  by  the  covenant  re- 
quired of  him,  according  to  the  tenor  and  effect  thereof,"  is  sufficient : 
that  in  a  case  of  this  kind  the  objection  is  to  the  form,  and  not  to  the 
substance,  of  the  declaration. 

In  Varley  v.  Manton,  9  Bing.  363,  it  was  held,  that  pleading  a  gen- 
eral covenant  [averment]  of  performance  "according  to  the  provisions 
of  the  said  agreement"  is  sufficient,  on  general  demurrer,  although  the 
agreement  contains  conditions  precedent,  specific  averment  of  the  per- 
formance of  which  would  have  been  indispensable,  on  special  demurrer. 

Tindal,  C.  J.,  said:  "We  must  take  the  words  of  the  averment  of 
performance,  as  they  would  strike  any  ordinary  person.  According  to 
the  provisions  of  the  said  agreement,  it  overrides  the  whole  of  the  pre- 
ceding averments ;  and  it  would  be  a  violent  construction  to  confine 
it  to  the  last  member  of  the  sentence.  That  brings  the  casejvvithin  the 
rule,  that  where  there  is  a  general  allegationror'performaiice^-ii-tke 


other  party  wants  a  more  specific  a'verment,  he  must  demur  specially^ 

Special  demurrers  were  abolished  by  the  Code  of  1849,  by  the  fol- 
lowing provision :  "On  a  demurrer,  (unless  it  be  a  plea  in  abatement,) 
the  court  shall  not  regard  any  defect  or  imperfection  in  the  declara- 
tion or  pleadings,  whether  it  has  been  heretofore  deemed  misplead- 
ing or  insufficint  pleading,  or  not  unless  there  be  omitted  something, 
so  essential  to  the  action  or  defense,  that  judgment  according  to  law 
and  the  very  right  of  the  cause,  cannot  be  given."  This  provision  has 
been  the  law  in  Virginia  and  this  State  ever  since  the  adoption  of  the 
Code  of  1849.  It  has  been  construed  in  the  following  as  well  as  other 
cases ;  Smith's  Adm'r  v.  Lloyd's  Ex'r,  16  Grat.  295 ;  Coyle  v.  B.  & 
O.  R.,  11  W.  Va.  94.     *     *     * 

In  applying  the  law  to  each  particular  case,  the  court  must  deter- 
mine, whether  the  objection  is  to  the  mere  form,  or  to  the  substance, 
of  the  declaration.  If  it  is  to  the  form  merely,  since  the  statute  abol- 
ished special  demurrers,  the  declaration  would  be  held  good ;  but  if  it 
is  to  the  substance,  and  there  is  omitted  something  so  essential  to  the 
action  or  defense  that  judgment  according  to  law  and  the  very  right 
of  the  case  cannot  be  given,  a  general  demurrer  would  be  sustained. 

It  is  manifest  to  me,  that  the  objection  to  the  first  count  is  to  the 
form,  thereof,  and  not  to  the  substance.  The  pleader  was  required  to 
show,  that  the  plaintiff  had  performed,  what  was  required  of  him,  be- 
fore he  could  require  of  the  other  party  to  perform  his  part  of  the 
agreement,  covenants  being  dependent.  This  he  has  done,  by  setting 
out  specifically  the  agreement,  and  specifically,  what  it  required  him  to 
do,  and  a  general  allegation,  that  "he  performed'and  complied  with  all 
the  several  matters  and  things,  by  and  under  the  said  indenture  to  be 
performed  and  complied  with  on  his  part,  according  to  the  tenor  and 
effect  of  the  said  indenture."    There  is  certainly  nothing  omitted  here 


308 


PLEADINGS   IN   CONTRACT   ACTIONS 


(Part  2 


so  essential  to  the  action,  that  judgment  according  to  law  and  the  very 
right  of  the  case  could  not  be  given. 

The  demurrer  to  the  first  count  was  properly  overruled. ^^ 
In  the  second  count  there  is  not  even  a  general  allegation  of  perform- 
ance, but  that  he  was  at  Bellaire  on  the  day  the  contract  was  to  be 
performed,  and  was  ready  and  willing  to  convey  &c.,  but  that  he  was 
prevented  from  so  doing  by  failure  of  the  defendant  to  be  there  on 
that  day,  and  that  the  defendant  was  on  that  day  absent  from  the  State 
of  Ohio,  and  in  the  State  of  West  Virginia,  where  he  resided,  &c. 

The  covenants,  declared  on,  are  clearly  dependent ;    and  unless  the 
excuse  for  not  performing  is  valid,  the  count  is  clearly  bad.    Roach  v. 
Dickinson,  9  Grat.   154.     In  Clark  v.  Franklin,  7  Leigh,  7,  Tucker, 
President,  said :   "Nothing  is  more  true,  than  tJiatr-v^here  a  contract  is- 
entire,  and  the  cSvenants  aredependent,   the.  p1ain<^ifF   is   ^^   gpnnm.l 
''^bl i ge dnfo~aver"ann^pro ve  a  complete  performan££-£if  all  that  was^jx)  be 
"TTone  and  performed  on  his  part,  before  he  is  entitled  to  deman4  pay- 
''^^gi^nt  frorn  the  other  party^  ^uLlQ_this  well  established  rule,  there  is 
"  the'  equally  well  established  exception   that,  where  the  .defendant  has 
^prevented  a  performance  by  the  plaintiff  on  his  part,  it  is'not  necessary. 
Jhat  the  plaintiff  should  avenor  prove  a  complete  peyinrm^rtre^  to  en- 
title  him  to  his  action     He  may  recover  without  doing  so:   and  it  is 
si^iffjcjent  tn  show  a  readiness  to_per|orm  and-that  he  wag  hinHprerl  by 
the  defendant."    Gas  Co.  v.  Wheeling,  8  W.  Va.  369,  opinion  of  Hay- 
mond,  Judge;    Smith  v.  Lewis,  24  Conn.  624,  63  Am.  Dec.  180;   Bor- 
den V.  Borden,  5  Mass.  67,  4  Am.  Dec.  32 ;   Smith  v.  Smith,  25  Wend. 
(N.  Y.)  405. 

The  circumstances  surrounding  this  case  show,  that  it  was  to  be  per- 
formed in  Bellaire,  in  the  State  of  Ohio,,  where  it  was  made.  Pugh 
V.  Cameron's  Adm'r,  11  W.  Va.  523.  It  was  the  duty  of  the  defend- 
ant to  be  at  that  place,  on  that  day,  to  accept  the  deed  and  wagon,  and 
pay  the  money,  and  execute  the  notes,  &c.  His  absence  from  the 
State  that  day  excused  the  plaintiff  from  performance  on  his  part  of 
the  agreement,  if  he  was  then  ready  and  willing  to  perform.  Smith 
V.  Smith,  25  Wend.  (N.  Y.)  405 ;  Tasker  v.  Bartlett,  5  Cush.  (Mass.) 
359;  Fessard  v.  Mugnier,  114  Eng.  C.  L.  284.  It  was  not  the  duty  of 
the  plaintiff,  to  follow  the  defendant  out  of  the  State,  to  make  a  tender 


5  7  Vivian  v.  Shipping,  Cro.  Car.  384  (1635);  Thorp  v.  Thorp,  12  Mod.  455 
(1701) ;  Varley  v.  Manton,  9  Bins.  363  (1S32) ;  Mauby  v.  Cremonini,  6  Ex. 
808  (1851);  Wright  v.  Tuttle,  4  Day  (Conn.)  313  (1810:  unless  act  to  be  done 
involves  questions  of  law :  covenant).  Accord.  Alexander  v.  Wales,  6  T.  B. 
Mon.  (Ky.)  323  (1827:  covenant);  Ridgway  v.  Forsyth,  7  N.  J.  Law,  98  (1823: 
where  act  to  be  done  involves  questions  of  law;  covenant);  Pennsylvania 
Co.  v.  Webb,  9  Ohio,  136  (1S39);  Hart  v.  Rose,  Fed.  Cas.  No.  6,154a  (1834: 
covenant) ;    Barbee  v.  Willard,  Fed.  Cas.  No.  909  (1848).  Contra. 

A  general  allegation  of  performance  is  bad  on  special  demurrer.  Vivian 
V.  Shipping,  Cro.  Car.  384  (1635)  semble ;  Varley  v.  Manton,  9  Bing.  363  (1832) 
semble;  People  v.  Glann,  70  111.  232  (1873:  mandamus):  Glover  v.  Tuck,  24 
Wend.  (N.  Y.)  153.  160  (1840:  unless  condition  or  conditions  simple  and  spe- 
cific;  covenant);   Woonsocket  Co.  v.  Taft,  8  R.  I.  411  (1867).  Accord. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  309 

of  the  deed  and  wagon.  The  second  count  is  therefore  good  and  the 
demurrer  thereto  was  properly  overruled.^^ 

The  third  count  being  abandoned  before  the  trial,  and  all  the  others 
being  good,  the  demurrer  was  as  to  the  whole  declaration  properly 
overruled. 

There  being  no  error  in  the  record,  the  judgment  of  the  court  is  af- 
firmed with  costs  and  damages.    The  other  Judges  concurred. 

Judgment  affirmed. 


SPANN  V.  BALTZELL. 

(Supreme  Court  of  Florida,  1847.     1  Fla.  301,  46  Am.  Dec.  346.) 

.  Hawkins,  J.^^  Error  from  Franklin  Superior  Court.  Action  was 
brought  in  the  Court  below,  by  Baltzell  against  Spann,  under  an  at- 
tachment for  $1400,  and  the  declaration  was  in  assumpsit,  on  the  fol- 
lowing promissory  note  against  Spann,  as  endorser: 

•      "Apalachicola,  Dec'r  3d,  1840. 
"By  the  22d  of  May,  1842,  I  promise  to  pay  to  the  order  of  L.  M. 
Stone,  at  the  Agency  of  the  Southern  Life  Insurance  and  Trust  Com- 
pany   Bank,  Apalachicola,   fourteen   hundred   dollars,   for   value   re- 
ceived. James  H.  Campbell." 
Endorsed:  "L.  M.  Stone. 

"Josiah  S.  Patterson. 
*'S.  Scarborough. 
"Rich'd  C.  Spann." 

Baltzell  sued  as  the  immediate  endorsee  of  Spann.  The  declaration 
avers,  that  at  the  time  the  note  became  due  and  payable,  according  to 
its  tenor  and  effect,  it  was  duly  presented  for  payment  at  the  Agency 
of  the  Southern  Life  Insurance  and  Trust  Company  at  Apalachicola. 
but  that  payment  was  refused;  of  all  which  the  defendant  had  due 
notice.     *     *     * 

The  Court  charged  the  jury:     *     *     * 

"4th.  If  a  bank,  at  which  a  note  is  so  payable,  and  which  note  is 
so  holden  by  another  person  than  such  bank,  has  quit  doing  business, 
and  a  demand  is  made  at  the  former  place  of  business  of  said  bank  of 
the  former  Cashier  thereof,  and  who  has  ceased  to  be  such  Cashier, 
such  demand  is  sufficient  in  law  to  entitle  the  holder  of  such  note  to 

58  Ferry  v.  Williams,  S  Tauii.  G2,  70  (1817);  Smith  v.  Lewis,  26  Conn.  110, 
118  (1S57);  Breckeiiridge  v.  Lee,  3  Bibb  (Ky.)  329  (1814:  covenaut):  Hilt  v. 
Campbell,  6  Me.  109  (1829)  semble;  Newcomb  v.  Brackett,  16  Mass.  161 
(1819);  Little  v.  Mercer,  9  Mo.  218,  223  (1845:  debt  on  a  specialty);  Potts  v. 
Poiut  Pleasant  Land  Co.,  49  N.  J.  Law,  411.  415,  8  A"tl.  109  (1887:  covenaut) ; 
North  V.  Pepper,  21  Wend.  (N.  Y.)  636  (1839:  covenant);  Clark  v.  Franklin, 
7  Leish  (Va.)  1,  7  (1836:  covenant).  Accord.  O'Brien  v.  Fowler,  67  Md.  561, 
11  Atl.  174  (1887 :   covenant).  Contra. 

5  8  Statement  of  facts  and  part  of  opinion  omitted. 


310 


PLEADINGS   IN   CONTRACT   ACTIONS 


(Part 


recover  of  the  endorser  thereof,  and  to  render  the  endorser  Hable 
thereon." 

To  which  instructions  the  defendant  excepted.     *     *     * 

As  to  the  demand  necessary  to  be  proved  in  this  case,  we  think  a 
sufficient  one  has  been  proved.  At  the  day  the  note  fell  due,  the 
Notary  went  to  the  place,  where  the  note  was  payable,  to  wit,  at  the 
place  previously  occupied  by  the  Agency  of  the  Southern  Life  In- 
surance and)  Trust  Company.  Robbins,  the  late  Agent  or  Cashier, 
testifies,  that  the  agency  had  been  removed  from  Apalachicola,  some 
weeks  previous  to  the  day  of  the  alleged  presentment  of  the  note.  The 
removal  of  the  Agency  rendered  the  demand,  therefore,  impossible  at 
the  Agency.  Proper  diligence  seemed  to  have  been  used,  and  we 
are  satisfied  that  when  demand  was  made  at  the  place  of  payment  of 
the  note,  and  it  was  found  that  the  agency  had  been  removed,  a  suffi- 
cient demand  had  been  made.  Of  course,  if  the  agency  had  simply 
been  removed  to  another  house  in  Apalachicola,  a  presentment  there 
would  have  been  necessary ;  but  the  testimony  was,  that  it  had  been 
removed  altogether.  It  is  like  a  case  where  a  note  is  payable  at  a 
particular  place,  and  a  demand  being  made  at  the  place  appointed,- 
it  is  found  shut  up  or  deserted!.  In  such  an  event,  it  would  amount  to 
a  refusal  to  pay,  for  the  demand  would  be  useless  and  inaudible. 
3  Kent,  96.  16  East.  122.  If  the  agency  had  been  continued  at 
Apalachicola  there  can  be  little  doubt  but  that  a  demand  should  have 
been  made,  within  the  usual  hours  of  business,  of  the  agency,  as  the 
parties  are  supposed  to  have  contracted  with  a  view  to  the  custom 
of  the  bank ;  but  there  certainly  can  be  extant  no  rules  or  customs 
of  the  agency,  when  the  agency  itself  has  no  existence. 

If  Robbins,  the  former  agent,  had  remained  at  the  place  of  the 
agency,  with  power  from  the  bank  to  do  business,  that  fact  may 
have  altered!  the  case;  but  Robbins  testifies,  that  he  did  not  consider 
the  room  formerly  occupied  as  the  agency,  as  an  office ;  that  he  was 
agent  up  to  the  time  of  the  removal  of  the  agency,  when  he  ceased 
also  to  be  agent.  The  fact  of  Robbins'  being  at  the  place,  would 
have  no  greater  effect  than  any  other  person's  being  there. 

If  thejnote  had  bepiijii^de_jjay7vHe_gpnprn11y,  andjQOt_at_  a.  partij:-_ 

ular  place,  and  the  maker  had  removed,  in  such_  case  it  would  have 

HfeerrtHe"'3uty'~ufTtie"iiolder  toTiave  niadeldiie-and-jdilig£nl;_search  for 

'-'lirrrrr'and  made  presentment,  if  withinthe  State_L._biiL  tlie  ras^^  at  bar 

fs  difi'ereliE    If  the  note  is  payable  at  a  particular  place,  the  d'emand^ 

must  be  made  there,  _becausg_J±L£  pi-ire,  is  made  part  nnd   pj^rrpl   nf 

the  contract;    and,  if^  as  before   stated,  the  place  is   found ^shjiLup 

""""aiid  deserted,  it  aniounts  to  a  refusal  to  pay.     Dickinson  v.  Bon,   16 

— East,  TTO,  S  Bingham,  214";     Bayley  on   Bills,    197-241;    Story  on 

Prom.  Notes,  §§  205-227;    Chitty  on  Bills,  399,  397,  172,  173,  174. 

A  question  may  now  arise,  whether  the  allegation  contained  in  the 
declaration,  as  to  presentment  of  the  note,  is  sustained  by  the  evi- 
dence— but  It  may  be  laid  down  as  a  general  principle,  that  where  facts 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  311 

or  circumstances  exist,  which  amount  to  aii_excuse,  or  do  away  witl> 
IHe  necessity  ol  a  delnan^tlie  declaration  may  be  in  the  usual  form, 
*ahd  proot_of  the  facts  which  dispense  with  a  formal  demarid,_win_ 

^-TTr-^^vif^'y^p(^p.(^rxi^d./prnr,i  ^f  dfPiand.    As  in  the  case  at  bar,  no  de- 
mandjn  compliancfi.  with  the  terms  of  the  note  could  have  been  made_ 
"on^account   of   the   removal   of   the   agency,   and  this   fact  being   in 

'Cadence,  it  is  a  sufficieht~excuse   tor  the  non-presentment,  arid_the~ 
allegation  ot  the  declaration  is  sustained. 

^  'I'lie  American  cases  go  to  the  extent  that  the  averments  of  demand 
and  notice,  in  the  declaration  on  a  bill  or  note,  were  sufficiently  sup- 
_  porteci  by  evidence  ot  any  thing  which  renders  demand  ^nc\  notice 
unnecessarv.  Stewart  v.  Eden,  2  Caines  (N.  Y.)  121,  2  Am.  Dec.  222; 
Norton  v.  Lewis,  2  Conn.  478.  Hosmer,  J.,  said :  "that  this  mode 
of  declaring,  relying  on  proof  of  an  excuse  for  the  omission  to  make 
demand  or  give  notice,  had  too  frequently  been  sustained  to  remain 
questionable." 

So,  when  no  demand  has  been  niade  of  the  maker,  on  account  of 
his  absence  in  a  foreign  country,  it  was  held  by  Van  Ness,  that  an 
averment  of  presentment  in  the  common  form  was  sufficient.  Cum- 
mings  V.  Fisher,  Anthon,  N.  P.  2.  See,  also.  City  Bank  v.  Cutter, 
3  Pick.  (Mass.)  414;  4  Campbell,  52;  Hodge  v.  Fillis,  3  Camp.  463; 
Ex  parte  Wallis,  7  Cow.  (N.  Y.)  523. 

So  also  the  fact,  that  the  maker  had  absconded  and  could  not  be 
found,  may  be  given  in  evidence,  under  the  allegation  that  the  note 
was  presented  and  payment  refused.  Stewart  v.  Eden,  2  Caines  (N. 
Y.)  121,  2  Am.  Dec.  222;  Williams  v.  Matthews,  3  Cow.  (N.  Y.) 
252 ;  Taunton  Bank  v.  Richardson,  5  Pick.  (Mass.)  436. 

So  a  promise  to  pay  after  notice  will  be  received  as  evidence  of 
notice.  Martin  v.  Winslow,  2  Mason,  241,  Fed.  Cas.  No.  9,172; 
Thornton  v.  W}nn,  12  Wheat.  183,  6  L.  Ed.  595 ;  Shirley  v.  Fel- 
lows, 9  Port.  Ala.  302.     *     *     * 

The  judgment  of  the  court  below  is  affirmed  with  costs."" 

60  Lundie  v.  Robertson,  7  East,  231  (1S06) ;  Greenway  v.  Hindley,  4  Camp. 
52  (1814);  Kennon  v.  McRae,  7  Port.  (Ala.)  175,  185  (1838);  Camp  v.  Bates, 
11  Conn.  487.  493  (1S36);  Tobey  v.  Berly,  2G  111.  426  (1861);  Taunton  Bank 
V.  Richardson,  5  Pick.  (Mass.)  436,  444  (1827);  Goodloe  v.  Godley,  13  Smedes 
&  M.  (Miss.)  233,  239,  51  Am.  Dec.  150  (1849);  Tebbetts  v.  Dowd,  23  Wend. 
(N.  Y.)  379,  384  (1840) ;  Gibbs  v.  Cannon,  9  Serg.  &  R.  (Pa.)  198,  203,  11  Am. 
Dec.  699  (1822);  Farmers'  Bank  v.  Day,  13  Vt.  36  (1841);  McVeigh  v.  Bank, 
67  Va.  785,  797  (1875).  Accord.     Burgh  v.  Legg,  5  M.  &  W.  418  (1839).  Contra. 

Aside  from  the  above  class  of  cases  excuse  for  nonperformance  of  a  con- 
dition cannot  be  proven  under  an  allegation  of  performance.  Higgins  v. 
Lee.  16  111.  495,  501  (1855);  Thompson  v.  Hoppert.  120  111.  App.  ijSS,  592 
(1905);  Smith  v.  Brown,  3  Blackf.  (Ind.)  22  (18.32);  Dyckham  v.  Smith,  5  T. 
B.  Mon.  (Ky.)  372  (1827);  Colt  v.  Miller,  10  Cush,  CMass.)  49  (1852);  Shinn 
V.  Haines.  21  N.  J.  Law.  340  (1848:  debt).  Accord.  Evans  v.  Howell,  211  111. 
85.  93.  71  N.  E.  854  (1904).  Contra. 

But  there  is  a  tendency  to  apply  the  bills  and  notes  rule  to  insurance  cases. 
German  Ins.  Co.  v.  Grunert,  112  111.  68,  1  N.  E.  113  (1884) ;    West  Ins.  Co.  i 
Wuit.C.L.Pl. — 21 


V 


312  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 


STEWART  MFG.  CO.  v.  IRON  CLAD  MFG.  CO. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1902.     67  N.  J.  Law,  577,  52 

Atl.  391.) 

Appeal  from  circuit  court,  Essex  county. 

Garrison,  J.^^  This  is  a  suit  by  the  Stewart  Manufacturing  Com- 
pany upon  a  contract  by  which  the  Iron  Clad  Manufacturing  Com- 
pany agreed  to  sell,  during  two  years,  900  heaters  under  the  plain- 
tiff's letters  patent,  and  to  pay  to  the  plaintiff  license  fees  therefor, 
according  to  a  schedule  contained  in  the  contract.  Breaches  of  this 
contract  by  the  defendant  might  be  either  (1)  its  refusal  to  account 
for  the  license  fees  for  the  sales  of  heaters  made  under  the  letters 
patent,  or  (2)  its  failure  to  sell  the  minimum  number  of  heaters  within 
the  prescribed  time.  In  the  former  case  the  measure  of  damage 
would  depend  upon  the  size  and  pattern  of  each  heater  sold  as  per 
the  schedule  of  royalties ;  in  the  latter  case  it  would  be  the  minimum 
rate  of  royalty  upon  the  number  of  heaters  agreed  to  be  sold. 

The  plaintiff  declared  specially  upon  the  former  of  these  breaches, 
alleging  the  manufacture  and  sale  by  the  defendant  of  900  heaters 
under  the  letters  patent  and  the  failure  to  pay  over  the  royalties  due 
thereon.  The  contract  and  the  common  counts  were  included  in  the 
dieclaration.  At  the  trial  the  plaintiff  proved  that  during  the  two 
years  covered  by  its  suit  the  defendant  had  sold  386  heaters,  upon 
which,  if  manufactured  under  the  plaintift''s  patent,  the  sum  of  $293.70 
in  license  fees  would  be  due  according  to  the  table  of  royalties.  The 
plaintiff  was,  however,  unable  to  prove  that  the  heaters  so  sold  were 
made  under  the  plaintiff's  patent.  A  citation  from  the  charge  of 
the  learned  judge  before  whom  the  cause  was  tried  correctly  states 
the  proof  upon  this  point.  "As  a  matter  of  fact,"  he  says,  "they 
(the  defendants)  have  sold  three  hundred  and  eighty-six  heaters. 
There  is  no  proof  in  the  case  that  the  heaters  which  they  sold  were 
heaters  under  the  Stewart  patent — no  absolute  proof — but,  [and  in 
what  follows  the  learned  judge  fell  into  error  of  law,  as. I  coaceive  it] 
inasmuch  as  they  were  bound  to  sell  and  pay  for  more  heaters  under 
the  Stewart  patent  than  they  actually  sold,  I  think  we  have  the  right 
to  assume  that  the  heaters  which  they  sold  were  made  in  pursuance 
and  in  fulfillment  of  their  contract,  and  that  they  are,  therefore,  in 
the  absence  of  other  proof,  fairly  to  be  taken  as  made  under  the 
Stewart  patent."  The  judge  then  proceedied  to  add,  to  the  386  heaters 
charged  for  at  royalty  rates,  enough  heaters  to  make  up  the  900  which 
the  contract  called  for,  to  wit,  514  heaters,  upon  which,  inasmuch 
as  they  had  not  been  manufactured  at  all,  the  lowest  royalty  was 
charged,  to  wit,  25  cents,  making  $128.50,  which  two  sums,  together 

Sheets,  G7  Va.  854,  874  (1875) ;    Levy  v.  Insnrauce  Co.,  10  W.  Va.  560,  27  Am. 
Rep.  598  (1877).  Accord. 

61  Part  of  the  opinion  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  313 

with  interest,  made  the  amount  for  which  a  verdict  was  directed  for 
the  plaintiff. 

The  error  of  law  into  which  I  conceive  that  the  trial  court  fell  was 
that  of  confusing-  the  two  breaches  of  the  contract,  which,  as  has 
been  shown,  differed  not  only  in  their  essential  nature  and  in  the  proof 
necessary  to  sustain  them,  but  also  in  their  measure  of  damage  and 
in  the  pleading  applicable  to  each.  To  charge  the  defendant  with 
having  sold  900  heaters  under  its  contract,  on  each  of  which  a  spe- 
cific royalty  was  due,  did  not  in  the  least  degree  tend  to  charge  it 
with  having  failed  to  sell  900  heaters  as  required  by  the  contract. 
Similarly,  to  prove  that  the  defendant  had  failed  to  sell  900  heaters 
(if  that  proof  could  have  been  made  under  the  pleadings)  did  not 
in  any  wise  tend  to  prove  that  the  heaters  which  it  had  sold  had 
been  manufactured  under  the  plaintiff's  letters  patent.  Nor  is  the 
matter  helped  by  the  presence  of  the  common  counts,  each  of  which 
charges  a  general  right  based  upon  something  that  has  been  done, 
and  none  of  which  charges  either  a  general  right  of  recovery  be- 
cause of  what  has  not  been  done,  or  a  particular  failure  of  the  de- 
fendant to  do  some  specified  thing,  except  it  be  his  mere  failure  to 
pay  money. 

The  direction  under  review  gave  to  the  plaintiff  a  verdict  to  which 
each  of  these  breaches  contributed,  made  up,  as  it  was,  in  part  of 
royalties  upon  sales  that  had  been  pleaded  but  not  proved,''^  and  in 
part  of  damages  for  a  breach  that  had  been  proved  but  not  pleaded. ^^ 
If  error  entered  into  either  of  these  judicial  rulings  (and  apparently 
it  entered  into  both),  the  judgment  below,  which  is  an  entirety,  can- 
not stand.  In  any  event,  therefore,  there  must  be  a  reversal  of  the 
judgment  brought  up  by  the  writ  of  error.     *     *     * 

The  result  is  that  the  judgment  is  reversed  upon  the  defendant's 
writ  of  error,  with  costs,  and  that  the  plaintift"s  writ  of  error  is  dis- 
missed, with  costs  to  the  defendant.®* 

62  Kidder  v.  Fla.sg,  28  Me.  477  (1S4S);  Penn.  Nav.  Co.  v.  Dandridge  8  Gill 
&  J.  (Md.)  248,  313.  29  Am.  Dec.  543  (1836:  probably  applying  tlie  "principle 
too  strongly).  Accord. 

63  A  breach  must  be  alleged.  Blakey  v.  Dixon,  2  B.  &  P.  321  (1800);  Can- 
field  V.  Merrick,  11  Conn.  425  (1836);  Black  v.  Woodrow,  39  Md.  194.  217 
(1874)  semble;  Williams  v.  Staton,  5  Smedes  &  M.  (Miss.)  347,  353  (1845); 
Atlantic  Co.  v.  Young,  38  N.  H.  451,  75  Am.  Dec.  200  (1859);  Mvers  v.  Davis' 
Fed.  Gas.  No.  9,986  (1808) ;  Carroll  County  v.  Collier,  63  Va.  302,  307  (1872) 
semble.  Accord. 

The  breach  alleged  must  be  a  breach  of  the  promise  alleged.  Anonymous 
Hardres,  320  (1662);  Withers  v.  Knox.  4  Ala.  138  (1842);  Atlantic  Co.  v. 
Young,  3S  N.  H.  451,  75  Am.  Dec.  200  (1859). 

64  The  facts  constituting  the  breach  must  be  alleged.  Knight  v.  Keech. 
Skinner,  344  (1694)  semble;  Weigley  v.  Weir,  7  Serg:  &  R.  (Pa.)  309  (1S21) 
semble;  Smith  v.  Walker,  1  Va.  135  (1792:  probably  too  strict).  But  this 
rule  does  not  apply  where  the  acts  violating  the  contract  are  verv  numer-  /-. 
ous.  Smith  V.  Railroad,  36  N.  H.  458,  485  (1858).  Or  consist  in  a  failure  to  7 
use  care.  Gliddon  v.  McKinstry,  25  Ala.  246  (1854).  Or  are  the  failure  to 
pay  money.     Butterworth  v.  Le  Despencer,  3  M.  &  S.  150  (1814). 

"When  there  is  a  special  count,  on  a  promise  to  pay  money,  and  general 


314  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 


II.  General  Assumpsit 

COUNTS  IN  GENERAL  ASSUMPSIT  FOR  MONEY  LENT 
AND  FOR  GOODS  SOLD  AND  DELIVERED. 

(2  Chitty,  Pleading  [13tli  Am.  Ed.]  pp.  *17,  *37,  *55,  *S7,  *90.) 

In  the  Common  Pleas. 

next  after  in  Michaelmas  Term,  1  Will.  4. 

Middlesex,  (to  wit)  C.  D.  was  attached  to  answer  A.  B.  of  a  plea 
of  trespass  on  the  case  upon  promises ;  and  thereupon  the  said  A.  B., 
by  E.  F.,  his  attorney,  complains.  For  that  whereas  the  said  defend- 
ant heretofore,  to  wit,  on  the day  of in  the  year  of  our 

Lord  at in  the  county  of  was  indebted  to  the 

said  plaintiff  in  the  sum  of   £ for  so  much  money  by  the  said 

plaintiff  before  that  time  lent  and  advanced  to  the  said  defendant,  at 
his  special  instance  and  request,  and  being  so  indebted,  he,  the  said 
defendant,   in  consideration  thereof,  afterwards,  to  wit,  on   the  day 

and  year  last  aforesaid  at  aforesaid,  undertook,  and  then  and 

there  faithfully  promised  the  said  plaintiff  to  pay  him  the  said  last- 
mentioned  sum  of  money,  when  he,  the  said  defendant,  should  be  there- 
unto afterwards  requested. 

And  whereas  also  the  said  defendant  afterwards,  to  wit,  on  the  day 

and  year  last  aforesaid,  at '■ —  aforesaid,  in  consideration  that  the 

said  plaintiff,  at  the  like  special  instance  and  request  of  the  said  de- 
fendant, had  before  that  time,  sold  and  delivered  divers  goods,  wares, 
merchandize,  and  chattels  to  the  said  defendant,  he,  the  said  defend- 
ant, undertook,  and  then  and  there  faithfully  promised  the  plaintiff  to 
pay  him  so  much  money  as  the  last-mentioned  goods,  wares,  merchan- 
dize and  chattels,  at  the  time  of  the  sale  and  delivery  thereof,  were 
reasonably  worth,  when  he,  the  said  defendant,  should  be  thereunto 
afterwards  requested.  And  the  said  plaintiff  avers,  that  the  said  last- 
mentioned  goods,  wares,  merchandize  and  chattels,  at  the  time  of  the 
said  sale  and  delivery  thereof,  were  reasonably  worth  the  further  sum 
of  £ of  like  lawful  money,  to  wit,  at aforesaid,  where- 
of the  said  defendant,  afterwards,  to  wit,  on  the  day  and  year  afore- 
said, there  had  notice. 

Nevertheless,  the  said  defendant,  not  regarding  his  said  several 
promises  and  undertakings,  but  contriving  and  fraudulently  intending 
craftily  and  subtly  to  deceive  and  defraud  the  said  plaintiff  in  this  be- 

counts,  a  general  breach  is  sufficient,  but  where  the  special  count  is  on  a 
promise  to  do  or  perform  any  other  act,  such  count  ought  to  allege  a  breach 
of  the  contract."  From  Farnsworth  v.  Nason,  Brayton  (Vt.)  192  (1S19).  But- 
terworth  v.  Le  Despencer,  3  M.  &  S.  150  (1S14) ;  Beardsley  v.  Southmayd,  14 
N.  J.  Law,  534,  543  (1S35)  semble.  Accord.  Ellis  v.  Turner,  19  Va.  196  (1S16: 
breach  at  end  of  common  counts  will  not  suffice  for  special  count  though 
for  money).  Contra. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  315 

half,  hath  not  as  yet  paid  the  said  several  sums  of  money,  or  any  or 
either  of  them,  or  any  part  thereof,  to  the  said  plaintiff,  although  often 
requested  so  to  do ;  but  the  said  defendant  to  pay  him  the  same  hath 
hitherto  wholly  neglected  and  refused,  and  still  doth  neglect  and  re- 
fuse, to  the  damage  of  the  said  plaintiff  of  £ and  therefore  he 

brings  his  suit,  etc. 


HIBBERT  V.  COURTHOPE. 

(Court  of  King's  Bench,  1G94.     Carthew,  276.) 

Assumpsit,  &c.  and  judgment  against  the  defendant  by  default,  and 
xiow  upon  a  writ  of  error  brought,  the  error  insisted  on  was,  that  the 
declaration  was  general,  (viz.)  that  the  defendant  was  indebted  to  the 
plaintiff  in  so  much  money  pro  opere  &  labore  ipsius  (the  plaintiff)  pro 
praedicto  (the  defendant)  ad  special  instantiam  &  requisitionem  prae- 
dict'  (the  defendant)  ante  tempus  illud  fact'  &  performat,'  without  set- 
ting forth  what  sort  or  manner  of  work  or  labour  it  was,  so  that  it 
might  appear  to  the  Court  to  be  lawful ;  for  it  might  be  about  some  un- 
lawful matter,  for  which  the  law  will  not  imply  any  promise,  &c. 

Sed  non  allocatur,  for  Per  Curiam,  the  only  reason  why  the  plain- 
tiff is  bound  to  shew  wherein  the  defendant  is  indebted,  is,  that  it  may 
appear  to  the  Court  that  'tis  not  a  debt  on  record  or  specialty,  but  only 
upon  simple  contract ;  and  any  general  words,  by  which  that  may  be 
made  to  appear,  are  sufficient. 

The  judgment  was  affirmed.®*- 


ALDINE  MFG.  CO.  v.  BARNARD. 
(Supreme  Court  of  Michigan,  1S91.     84  Mich.  632,  48  N.  W.  280.) 

Appeal  from  circuit  court,  Kent  county; 

LoNG^  J.°®  *  *  *  It  is  also  contended  that  the  plaintiff  had  no 
right  to  waive  the  tort  and  sue  in  assumpsit.  There  is  nothing  in  this 
point.  It  was  personal  property  in  the  hands  of  the  defendant,  to 
which  the  plaintiff  was  lawfully  entitled.  He  demanded  it,  and  de- 
fendant refused  to  surrender  the  possession.  The  action  was  com- 
es Tate  V.  Lewen,  2  Saund.  372a  (1671);  Crawford  v.  Whittal,  1  Doug.  4 
note  (1773) ;  Crane  v.  Grassman,  27  Mich.  443  (1873).  Accord.  So  of  a  com- 
mon count  in  debt.  Walker  v.  Witter,  1  Doug.  1  (1778) ;  Emerj^  v.  Fell,  2 
T.  R.  28  (1787);  Wilkins  v.  Wiugate,  6  T.  R.  62  (1794);  Gray  v.  Johnson,  14 
N.  H.  414,  419  (184.3). 

But  the  usual  general  allegation  of  the  nature  of  the  debt  is  necessary. 
Tyrwhite  v.  Kynastan,  Noy,  146  (1608);  Maury  v.  Olive,  2  Stew.  (Ala.)  472 
(18.30);  Brown  v.  Webber,  6  Cush.  (Mass.)  560,  570  (1850);  Turner  v.  Jenkins. 
1  Har.  &  G.  (Md.)  161  (1827). 

A  count  on  an  account  stated  need  not  state  the  naturt  ol!  ttie  claims  ac- 
counted on.     Brinsley  v.  Partridge,  Hobart,  88  (1612). 
«6  Part  of  the  opinion  omitted. 


^16  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

meiiced  in  trover,  and  by  stipulation  of  the  parties  the  form  of  the 
action  was  changed  to  assumpsit.  The  possession  of  the  property  was 
obtained  under  contract  between  the  parties,  and  the  refusal  to  sur- 
render upon  demand  amounted  to  a  conversion  for  which  the  tort  could 
be  waived  and  assumpsit  brought.  Tuttle  v.  Campbell,  74  Mich.  652, 
42  N.  W.  384,  16  Am.  St.  Rep.  652.  The  action  could  be  maintained 
on  the  common  counts  (AIcLaughlin  v.  Salley,  46  Mich.  219,  9  N.  W. 
256,)  even  though  the  declaration  does  not  set  forth  the  waiver  of 
the  tort  (McDonald  v.  McDonald,  67  Mich.  122,  34  N.  W.  276.)  We 
find  no  error  in  the  record. 

The  judgment  must  be  affirmed,  with  costs.    The  other  justices  con- 
curred.^^ 


ATWOOD  v.  LUCAS. 
(Supreme  Judicial  Court  of  Maine,  1866.    53  Me.  508,  89  Am.  Dec.  713.) 

Walton,  J.®^  The  plaintiff  says  that  he  was  the  owner  of  twen- 
ty-three lambs ;  that  he  offered  to  sell  them  to  the  defendant  for  $3.75 
per  head;  that  the  defendant  agreed  to  buy  them  at  that  price,  and 
afterwards  paid  him  fifty  dollars  and  took  away  four  of  the  lambs,  but 
subsequently  refused  to  take  the  other  nineteen,  and  threatened  to 
bring  a  suit  to  recover  back  the  money  he  had  paid  jjind  the  question  is 
whether  these  facts  will  support  a_general  indebitatus  assumpsit  count 
for  goodi~sold  arid  deTJyered.  Cl£aj±v!_nQt^~TaIiiiainrain  suclfa  count 
'^pfoof"uf~aif^ctual  delivery  to  and  acceptance  by  the  purchaser  of  the 
""goods  sued  for  is  ess"ential.  It  none  orpart  oiiTy~oT  the  good"s""tTa:v^ 
H;eeir"accepred  by  the  purclmser, Jhe  seller'sj;emedy  is._aiL-actionuCLL.sfi£- 
^"ciaFassurnpsit  for  goods  bargained  and  sold,  not  goods  spXd^and.  d£.- 
'^^jJATgre^r  "In  these  cases,"  says  Mr.  Chitty,  "the  declaration  should 
be  framed  specially  on  the  contract  for  not  accepting  the  goods,  or 
for  refusing  to  complete  the  bargain."  1  Chit.  PI.  345-347;  Hart  v. 
Tyler,  15  Pick.  (Mass.)  171;  Stearns  v.  Washburn,  7  Gray  (Mass.) 
187;  Messer  v.  W^oodman,  2  Post.  (N.  H.)  172,  53  Am.  Dec.  241. 

It  is  laid  down  by  Mr.  Saunders,  that  to  support  an  action  for  goods 
sold  and  delivered,  the  plaintiff  must  prove,  not  only  such  a  delivery 
as  will  vest  the  property  in  the  goods  in  the  defendant,  but  such  a  de- 
livery as  will  divest  himself  of  all  lien  upon  the  goods,  and  enable 
the  defendant  to  maintain  trover  for  them  without  paying  or  offering 
to  pay  for  them.    Saund.  on  PI.  &  Ev.  536. 

There  may  be  such  a  delivery  as  will  satisfy  the  statute  of  frauds, 
and  yet  not  such  a  delivery  as  will  authorize  the  maintenance  of  a 
suit  for  goods  sold  and  delivered.  Delivery  to  and  acceptance  by  the 
purchaser  of  any  portion  of  the  goods  bargained  for  will  satisfy  the 

6  7  Mclntyre  v.  Thompson,  14  III.   App.  554  (1884);    Nelson  v.  Kilbride,  113 
Mirb.  637,  71  N.  W.  10S9  (1897).  Accord. 
6  8  Part  of  the  opinion  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  317 

Statute  of  frauds,  but  to  authorize  the  maintenance  of  a  suit  for 
goods  sold  and  delivered  there  must  be  a  delivery  and  acceptance  of 
all  the  goods  sued  for. 

The  difficulty  in  the  way  of  maintaining  this  suit  does  not  arise  out 
of  the  statute  of  frauds,  for  the  defendant  actually  took  and  carried 
away  four  of  the  twenty-three  lambs  bargained  for,   and  so  far  as 
the  statute  of  frauds  is  concerned  this  was  as  good  a  delivery  as  if  he 
had  taken  the  whole.    The  difficulty  is  that  he  has  not  adopted  a  form 
of  action  suited  to  his  case.     Nineteen  of  the  lambs  sued  for  were 
never  taken  by  the  defendant.     They  remained  upon  the  premises  of 
the  plaintiff  and  under  his  care,  and  were  sheared  by  him  the  follow- 
ing season,  and  for  aught  that  appears  are  still  in  his  possession;    and 
the  law  is  well  settled  that  if  any  portion  of  the  goods  sU£d_JDX-r&maia 
undelivered  by  the  seTTerTor  unaccepted  by  the  purchaser,  or  subject 
to  a  lien  for  the  purchase  money,  the  seller  must  declare  specially,  and  .. 
hot  generally  as  fof~goo'ds~sold  and  delivered. 
'       'I'he  prmcipal  reason~for  Inquiring  the  plaintiff  to  declare  specially 
is 'to"  enable  the~Court  properly  to  adjust  the  damages.     In  an  actfolT" 
"for  goods  sold  and  delivered  the  measure  of  damages  is  the  contract^ 
.  prlce~grjull_value  of  the  goods  sued  for,  which"  is  uniustifjhe  whole 
or_any  portion  oT~tli^e~good"s~sdtTlxmaiTi^i^'"pfoperry^of  the  plamtiff 
^ndunder  His  control."    Bi!r~it~the~ptaintiff"d^ares  specially,  s^ttiiig_ 
out  first  the  contract,  anSnth^iTTIie  breaches  of  it  on  the  part  of  the 
detendanl,  the  Cotirt-45^Babled"ta~a5opt  such" a  measur^^|_damagi 
as  will  do  exact  justicelDefweenThe^artres."  *     *     * 

Plaintiff  nonsuit."^""  '  ' 

ApplETon,  C.  J.,  and  Kent,  Dickerson,  Barrows  and  Danforth, 
JJ.,  concurred. 

6  9  Simmons  v.  Swift.  5  B.  &  C.  857  (1826);  Boulter  v.  Arnott,  1  O.  &  M. 
3.3.3  (1833);  Aroiis  v.  Cummings,  107  Me.  19,  78  Atl.  98,  31  L.  R.  A.  (N.  S.) 
942  (1910).  Accord. 

Such  a  count  will  not  lie  where  the  delivery  is  to  a  third  person.  Boston 
Co.  V.  Dewey,  6  Gray  (Mass.)  446  (1856). 

Generally  the  plaintiff  must  allege  the  nature  of  the  debt  trulv.  Power 
V.  Butcher,  10  B.  &  C.  329  (1829)  semble ;  Moore  v.  Ross,  7  N.  H.  528  (1S3.5); 
North  Co.  V.  Church,  22  N.  J.  Law  424,  429,  53  Am.  Rep.  258  (1850);  Hemen- 
way  V.  Smith,  28  Vt.  701  (1856).  Accord.  Dauchy  v.  Gunder,  150  111.  App. 
604,  009  (1909 :  rent  may  be  recovered  without  count  for  use  and  occupation). 
Contra.  . 

A  count  for  goods  bargained  and  sold  will  lie  where  there  has  not  been        ^-^ 
delivery.     Rohde  v.  Thwaites,  6  B.  &  C.  388  (1827);    Acme  Co.  v.  Older.  64 
W.  Va.  255,  61  S.  E.  235.  17  L.  R.  A.  (N.  S.)  807  (1908).     See,  also,  1  Chitty 
(13th  Am.  Ed.)  pp.  *345,  *347. 


318  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 


PARKER  V.  MACOMBER. 

(Supreme  Court  of  Rhode  Island,  1892.     17  R.  I.  67i,  24  Atl.  4G4,  16  L.  R. 

A.  858.) 

Assumpsit  by  Arthur  T.  Parker  against  Lydia  A.  Macomber. 
There  was  judgment  for  plaintiff,  and  defendant  petitions  for  a  new 
trial.    Denied. 

DouGivAS,  J.'^°  This  is  an  action  of  assumpsit,  brought  to  recover 
compensation  for  board,  maintenance,  care,  and  nursing  for  390 
weeks  from  April  1,  1881,  to  October  1,  1888,  at  $5  per  week — 
$1,950.  The  declaration  contains  the  common  counts  in  indebitatus 
assumpsit  for  goods  sold  and  delivered,  work  and  labor,  money  had 
and  received,  and  for  interest.  The  jury  returned  a  verdict  for 
the  plaintiff,  and  assessed  his  damages  at  $1,072.50,  being  at  the  rate 
of  $2.75  per  week  for  390  weeks.  It  appeared  that  the  services  ren- 
dered were  induced  by  a  parol  agreement  between  the  parties  by  which 
the  plaintiff  agreed  that  he  and  his  wife  should  live  in  the  house  of 
the  defendant  and  care  for  and  maintain  her  during  her  natural  life, 
and  the  defendant  agreed,  in  consideration  of  these  services,  that  she 
would  charge  no  rent  for  the  house,  would  pay  eight  dollars  per 
month  board,  and  would  give  the  house  and  leasehold  interest  in  the 
lot  to  the  plaintiff  at  defendant's  death.  She  didi  not  pay  the  board 
as  agreed,  but  did  pay  some  milk  bills  for  the  plaintiff  on  account. 
Plaintiff's  wife  died  February  13,  1888,  and  from  that  time  he  fur- 
nished housekeepers.  In  August,  1888,  defendant  notified  plaintiff 
to  leave  the  house,  and  he  removed  October  1.  Evidence  was  intro- 
duced against  the  objection  of  defendant  of  the  value  of  the  serv- 
ices rendered.  The  defendant  now  prays  for  a  new  trial,  on  the 
ground  that  the  services  were  performed  under  An  entire  contract, 
which  was  not  completed  by  the  plaintiff'  because  of  the  death  of  his 
wife,  whose  personal  attendance  formed  an  essential  part  of  the  con- 
sideration of  it,  and  because  the  evidence  objected  to  was  inadmissible 
under  the  declaration.  The  plaintiff  contends  that  after  the  death 
of  his  wife  the  same  services  were  rendered  by  the  housekeepers 
whom  he  engaged,  and  that  he  was  prevented  from  completing  the 
contract  by  the  defendant,  who  ejected  him  from  the  house,  and  not 
by  his  wife's  death. 

The  questions  which  are  raised  by  the  petition  are  whether  the 
plaintiff  can  recover  what  his  services  are  reasonably  worth  notwith- 
standing the  making  of  the  contract,  and,  if  so,  whether  this  declara- 
tion is  sufficient  without  a  count  in  quantum  meruit  to  admit  evidence 
of  the  value  of  the  services  and  to  sustain  judgment  therefor.     *     *     * 

If  the  plaintiff  was  prevented  from  continuing  his  contract  by  the 
arbitrary  act  of  the  defendant,  he  may  disregard  it,  and  recover  the 
value  of  the  services  he  has  rendered  in  partial  performance  of  it. 

7  0  Part  of  the  opinion  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  319 

Greene  v.  Haley,  5  R.  I.  260.  If  the  death  of  the  plaintiff's  wife 
was  a  substantial  failure  of  the  consideration,  then  the  defendant 
was  justified  in  rescinding  the  contract,  as  the  full  performance  of  it 
on  the  part  of  the  plaintiff  had  become  impossible.  We  think  such 
was  the  case.  The  personal  services  and  attentions  of  the  wife  to 
the  defendant,  who  was  the  plaintiff's  aunt,  were  undoubtedly  con- 
templated by  the  parties  as  more  agreeable  and  efficient  than  the  serv- 
ices of  strangers  could  be,  and  may  well  be  considered  an  essential 
part  of  the  benefits  which  the  defendant  was  to  receive.  Yerrington 
V.  Greene,  7  R.  I.  589,  84  Am.  Dec.  578;  Knight  v.  Bean,  22  Ale. 
531;  Spalding  v.  Rosa,  71  N.  Y.  40,  27  Am.  Rep.  7;  Stewart  v. 
Loring,  5  Allen  (Mass.)  306,  81  Am.  Dec.  747. 

The  question  is  then  presented  whether  a  person  who  has  rendered 
personal  services  under  an  entire  contract  which  the  act  of  God  has 
prevented  him  from  fully  performing  can  recover  upon  an  implied 
assumpsit   what  those   services   are   reasonably   worth.     *     *     *  '^^ 

The  question  remains  whether  the  plaintiff's  declaration  is  sufficient 
without  the  count  in  quantum  meruit.  We  think  it  is  sufficient.  A 
count  in  quantum  meruit,  as  well  as  one  in  indebitatus  assumpsit  for 
work,  labor,  skill,  care,  and  diligence,  etc.,  claims  a  certain  sum  as 
due.  In  either  case  the  plaintiff  may  recover  less,  and)  the  judgment 
is  for  so  much  of  his  stated  claim  as  is  found  to  be  justly  merited. 
The  counts  in  quantum  meruit  and  quantum  valebat  are  therefore 
unnecessary  in  any  case.  1  Chit.  PI.  *352,  *353.  The  petition  for 
a  new  trial  must  be  denied  and  dismissed.'''^ 


BONNEY  V.  SEELY. 

(Supreme  Court  of  New  York,  1829.    2  Wend.  481.) 

This  was  an  action  of  assumpsit,  tried  at  the  Tompkins  circuit,  in 
June,  1828,  before  the  Hon.  Samuel  Nelson,  one  of  the  circuit  judges. 

The  declaration  contained  the  common  money  counts.  The  plain- 
tiff had  given  a  bill  of  particulars,  in  which  he  claimed  to  recover 
for  money  paid  by  him  for  the  defendants,  in  consequence  of  having 
joined)  with  them  in  making  a  note  for  $300  for  their  accommoda- 
tion, and  which  he  had  been  compelled  to  pay.  The  note,  and  an 
agreement  by  the  defendants  to  save  the  plaintiff  harmless  from  the 

71  The  court  concluded  that  on  the  present  facts  the  plaintiff  had  a  right 
to  recover. 

7  2  Burke  v.  Claughlon,  12  App.  Cas.  (D.  C.)  182,  187  (1S9S)  semble;  Andre 
V.  Hardin,  32  Mich.  324  (1875);  Yiles  v.  Power  Co.,  79  Vt.  311,  320,  65  Atl. 
104  (1903).  Accord.     See,  also,  2  Saund.  122,  note  2. 

But  a  definite  sum  due  by  contract  cannot  be  recovered  under  a  quantum 
meruit  or  quantum  valebant  count.  Carson  v.  Allen,  6  Dana  (Ivv.)  395  (1838)- 
Willis  V.  Melville,  19  La.  Ann.  13  (1867);  Weart  v.  Hoagland,  22  N.  J.  Law, 
517  (1850). 


320 


PLEADINGS   IN   CONTRACT  ACTIONS 


(Part  2 


payment  thereof,  were  produced.  A  judgment  was  obtained  by  the 
holders  of  the  note  against  the  plaintiff  in  this  suit  for  $401.61, 
which  was  satisfied  by  the  plaintiff  by  the  conveyance  of  a  lot  of 
land,  the  consideration  expressed  in  which  was  $548.31.  This  evidence 
of  payment  in  land  instead  of  money  was  objected  to  as  variant  from 
the  bill  of  particulars,  but  was  receivedl  by  the  judge.  *  *  *  The 
jury  found  accordingly. 

Savags,  C.  J.^*  It  was  decided  in  Ainslee  v.  Wilson,  7  Cow.  668, 
17  Am.  Dec.  532,  that  the  conveyance  of  land  recH'^^'^'^  ^'^  rlkr1iqro|p 
of  a  money  debt  Juefrom  the  plaintiff  is,  in  judgment  of  law,  to  be 
considered  the  same  thing  as  if  the  plaintiff  had  actually__paid  nioney. 
'  So~nr'Randail  v.  Rich,  11  Mass.  498,  Parker,  C.  J.,  says,  in  a  sim- 
ilar case,  as  to  this  point,  "the^^tisfa£tion  of  the  execution  ought  to 

^ be  considered  as  a_payment  of  the  debt  in  money;   and  although  land^ 
is  taken,  it  is  taken  at  money^s  worHT;    and  the  debt  which  mig;ht 

"irave^Tjeen   exacted_in  money,    at^  a.11  events~"has    been  _discharged/L- 
— Those~cases^  settle  the  question  that  the  payment_of  the  debt  of  the 

'^ef eridants  In  Tand  is  sufficient  to  sustain  the  action  for  morey  p^irL 

A  new  trial  is  granted ;  costs  to  abide  the  event.^* 


PENOBSCOT  R.  CO.  v.  MAYO. 
(Supreme  Judicial  Court  of  Maine,  1878.    67  Me.  470,  24  Am.  Rep.  45.) 

LiBBEY,  J.^^  This  action  ''^  is  brought  by  N.  Wilson,  in  the  name 
of  the  plaintiff",  as  assignee  or  pledgee  of  the  claim  in  suit.     *     *     * 

The  writ  contains  three  counts.  1.  On  an  account  annexed,  2. 
Money  had  and  received.  3.  On  a  promissory  note  for  $4,000  given 
by  defendant  to  plaintiff  dated  A^ay  28,  1862,  payable  in  one  year 
with  interest.  The  action  was  commenced  January  3,  1870.  De- 
fendant pleaded  and  relies  upon  the  statute  of  limitations.    The  case 


73  statement  of  fact  abridged,  and  part  of  the  opinion  omitted. 

74  Miller  v.  Miller,  7  Pick.  (Mass.)  1.33,  19  Am.  Dec.  264  (1828);  Lord  v. 
Staples,  23  N.  H.  448,  456  (1851) ;  Ainslie  v.  Wilson.  7  Cow.  (N.  Y.)  662,  668, 
17  Am.  Dec.  532  (1827).  Accord.  Moore  v.  Pyrke,  11  East,  52  (1809:  chat- 
tels; doubted  in  Rodsers  v.  Maw,  15  M.  &  W.  444  [1846]);  Carlisle  v.  Dunn, 
5  Blackf.  (lud.)  605  (1841)  semble.  Contra. 

The  giving  of  a  negotiable  note  will  sustain  the  count  for  money  paid. 
Barclay  v.  Gorch.  2  Esp.  571  (1797);  Cornwall  v.  Gould,  4  Pick.  (Mass.)  444 
(1827);  Pearson  v.  Parker,  3  N.  H.  366  (1826);  Witherby  v.  Mann,  11  Johns. 
(N.  Y.)  518  (1814);  Craig  v.  Craig,  5  Rawle  (Pa.)  91  (1835).  But  giving  a 
nonnegotiable  bond  will  not.  Taylor  v.  Higgins,  3  East,  169  (1802);  Gumming 
V.  Hackley,  8  Johns.  (N.  Y.)  202  (1811);  Morrison  v.  Berkey,  7  Serg.  &  R. 
(Pa.)  238  (1821).  Nor  will  the  giving  of  a  mortgage.  Kearney  v.  Tanner,  17 
Serg.  &  R.  (Pa.)  94,  17  Am.  Dec.  648  (1827). 

7  5  Statement  of  facts  and  part  of  opinion  omitted. 

76  Of  assumpsit. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  321 

was  referred  under  a  rule  of  court  on  legal  principles,  the  referee 
to  report  any  facts  and  questions  of  law  that  either  party  might  de- 
sire with  right  of  exceptions.  So  far  as  is  material  for  the  considera- 
tion of  the  questions  involved,  the  following  facts  appear  from  the 
reports  of  the  referee:  On  the  28th  of  May,  1862,  the  plaintiff  sold 
to  the  defendant  $68,700  of  its  bonds  for  $4,000,  the  defendant  giv- 
ing his  note  therefor,  payable  in  one  year  with  interest.  The  plain- 
tiff corporation  by  vote  of  the  same  date,  pledged  the  note  to  the  di- 
rectors as  security  for  the  several  amounts  by  them  advanced  to  the 
company  and  then  due  them,  and  when  collected  to  be  divided  among 
them  in  proportion  to  the  sum  actually  due  to  each.  When  the  de- 
fendant gave  the  note  it  was  verbally  agreed  between  the  parties 
that  if  he  did  not  sell  the  bonds  or  receive  any  compensation  for  them, 
his  note  should  be  canceled  and  given  up  to  him  without  pay.  On 
the  13th  of  July,  1864,  the  defendant  falsely  and  fraudulently  rep- 
resented to  the  directors  of  the  plaintiff  corporation  that  he  had  turned 
over  the  bonds  to  the  European  and  North  American  Railway  Co., 
which  had  become  the  purchaser  of  all  the  property  of  the  plaintiff, 
without  pay  or  compensation  therefor,  suppressing  the  fact  that  he 
had  previously  sold  the  bonds  and  received  therefor  $22,000  in  the 
bonds  of  the  European  and  North  American  Railway  Co.,  and  thereby 
procured  the  surrender  of  his  note  without  payment.  The  fraud  was 
concealed  by  the  defendant  and  did  not  come  to  the  knowledge  of  the 
plaintiff  till  January  7,  1868.  The  account  annexed  to  the  writ  con- 
tains the  following  item:  "1864,  July  13.  To  your  note  of  $4,000,  on 
interest  from  May  28,  1862,  given  up  by  reason  of  your  false  rep- 
resentation that  you  had  surrendered  the  bonds  for  which  it  was 
given  without  consideration  or  payment,  and  it  was  therefore  to  be 
given  up  and  canceled,  whereas  you  had  sold  and  received  pay  for 
said  bonds  in  October,  1863,  long  prior  to  giving  it  up,  $6,400."  In 
the  writ  the  plaintiff  specified!  that,  under  the  second  count,  it  will 
prove  "the  account  annexed  and  that  the  money  was  received  by  the 
defendant  to  the  use  of  the  plaintiff,"  Upon  these  facts  the  referee 
finds,  as  matter  of  law,  that  the  action  can  only  be  maintained  on  the 
note  declared  on  in  the  third  count,  and  that  the  action  is  barred  by 
the  statute  of  limitations.  If  the  first  finding  is  correct,  it  follows 
that  the  action  is  barred.  This  court  so  held  in  65  Alaine,  566,  supra. 
That  decision  is  invoked  by  the  counsel  for  the  defendant  as  deci- 
sive of  the  case  as  now  presented.     We  think  it  is  not. 

Undoubtedly  the  plaintiff'  can  maintain  an  action  for  the  fraud  of 
the  defendant  in  procuring  the  surrender  of  the  note  without  pay- 
ment. It  might  maintain  an  action  of  case  for  the  fraud,  or  of  tro- 
ver for  the  note.  In  either  case  the  statute  of  limitations  would  com- 
mence to  run  from  the  time  the  fraud  was  discovered,  or  might  have 
been  discovered  in  the  use  of  due  diligence  by  the  plaintiff.  And  if 
by  the  fraud  the  defendant  procured  money,  or  its  equivalent  the 


322  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

tort  may  be  waived  by  the  plaintiff,  and  assumpsit  for  money  had 
and  received  maintained. 

Did  the  defendant  by  procuring  the  surrender  of  his  own  note 
then  overdue  without  payment  receive  the  equivalent  of  money? 

It  has  been  repeatedly  held  that  where  a  debtor  procures  a  discharge 
of  his  debt  by  payment,  in  whole  or  in  part,  in  counterfeit  money,  an 
action  for  money  had  and  received  may  be  maintained  for  the  amount 
of  the  payment  thus  made,  the  plaintiff  first  tendering  back  the  coun- 
terfeit money  received.  So  an  agent  who  discharges  a  debt  due  to 
his  principle  by  taking  a  note  payable  to  himself,  may  be  held  for 
money  had  and  received,  though  the  note  is  unpaid.  Floyd  v.  Day, 
3  Mass.  403,  3  Am.  Dec,  171 ;  Hemmenway  v.  Bradford,  14  Mass. 
121;  Hemenway  v.  Hemenway,  5  Pick.  (Mass.)  389;  Fairbanks  v. 
Blackington,  9   Pick.   (Mass.)   93. 

There  is  stronger  reason  for  holding  one  who  has  procured  the  sur- 
render of  his  own  note,  for  money  had  and  received,  than  where 
he  has  received  the -note  of  another.  So  where  the  defendants  pro- 
cured the  plaintiffs,  who  were  agents  of  the  defendants'  creditors, 
to  procure  the  discharge  of  their  debt,  and  the  plaintiffs  did  so  by 
giving  their  principals  credit  therefor,  andl  charged  the  amount  to 
the  defendants,  it  was  held  equivalent  to  the  payment  of  money  by 
the  plaintiff's,  and  the  receipt  of  money  by  the  defendants,  and  an 
action  for  money  paid  or  money  had  and  received  might  be  main-' 
tained.    Emerson  v.  Baylies,  19  Pick.  (Mass.)  55. 

In  Perry  v.  Swasey,  12  Cush.  (Mass.)  36,  the  maker  of  a  note  re- 
leased to  a  third  person  a  claim  against  him  to  an  amount  equal  to 
the  note,  upon  the  promise  of  such  third  person  to  pay  and  take  up 
the  note.  In  discussing  the  question  whether  the  holder  of  the  note 
could  maintain  an  action  for  money  had  and  received  against  such 
third  person,  Shaw,  C.  J.,  in  delivering  the  opinion  of  the  court  says : 
"We  are  strongly  inclined  to  the  opinion  that  the  plaintiff  is  entitled 
to  recover  on  the  money  counts,  as  for  money  had  and  received. 
Hall  V.  Marston,  17  Mass.  575.  Mrs.  Harvey  placed  money  in  the 
hands  of  the  defendant  for  the  use  of  the  plaintiff.  *  *  *  f  j^g 
discharge  of  a  debt  due  in  money  is,  for  many  purposes,  equivalent 
to  a  payment  in  cash.  One  who  has  collected  the  debt  of  another, 
by  taking  a  note  in  his  own  nam^,  is  liable  as  for  money  had  and 
received." 

In  Stuart  v.  Sears,  119  Mass.  143,  the  plaintiff  was  induced  to  al- 
low the  defendant  in  part  payment  of  the  sum  due  from  him,  a  credit 
of  $1,000  in  the  settlement  of  their  accounts,  by  the  presentation  by 
the  defendant  of  a  false  voucher  therefor.  It  was  held  that  the 
plaintiff  might  recover  the  $1,000  under  a  count  for  money  had  and 
received,  the  court  treating  the  allowance  of  the  credit  by  plaintiff' 
as  money  paid  by  him  and  received  by  the  defendant.  See  Ames 
v.  York  National  Bank,  103  Mass.  326;  Baxter  v.  Paine,  16  Gray 
(Mass.)  273. 


^ 


J- 

I 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  323 

In  Hall  V.  Huckins,  41  Me.  574,  the  defendant  was  indebted  to  the 
States  of  Maine  and  Alassachusetts  for  the  stumpage  of  certain  tim- 
ber. He  claimed  that  the  plaintiffs  should  pay  him  the  amount,  and 
in  a  settlement  with  them  charged  them  the  amount  claimed,  and 
gave  them  an  agreement  to  account  to  and  allow  them  any  and  all 
deductions  which  he  might  obtain  in  settlement  with  those  states. 
He  obtained  a  certain  deduction  by  Massachusetts.  In  discussing  the 
question  whether  the  plaintiffs  could  recover  under  the  count  for 
money  had  and  received,  Appleton,  J.,  in  delivering  the  opinion  of 
the  court,  says :  "To  enable  the  plaintiff  to  recover  under  the  money 
counts,  it  has  not  been  held  necessary  in  all  cases  to  show  that  money 
has  actually  been  received.  If  anything  has  been  received  in  lieu  of 
money,  it  equally  entitles  the  plaintiff  to  recover,"  citing  several  au- 
thorities. In  applying  the  rule  to  the  case  then  under  consideration, 
he  says :  "Whatever  reduction  might  be  obtained  would  be  for  the 
eventual  benefit  of  the  plaintiffs.  Had  the  stumpage  been  paid  to 
the  commonwealth  of  Massachusetts,  the  reduction  would  have  been 
by  repayment  to  the  defendant  of  the  amount  discounted.  Whether 
the  reduction  were  made  by  passing  a  specified  sum  to  the  credit  of 
the  defendant,  or  whether  the  stumpage,  having  been  paid,  the 
amount  discounted  were  repaid  to  the  defendant,  would  make  no 
difference  to  him  nor  to  the  plaintiffs  who  were  to  have  the  benefit 
of 'whatever  allowance  might  be  made."  In  this  case  the  defendant 
had  received  no  money,  but  the  court  held  that  the  reduction  by  Massa- 
chusetts from  the  amount  due  from  him  was  equivalent  to  money, 
and  sufficient  to  maintain  the  action  for  money  had  and  received. 

After  a  careful  consideration  of  the  question,  we  feel  clear,  both 
on  principle  and  authority,  that  fraudulently  procuring  the  surren- 
der and  cancellation  of  the  note  by  the  defendant,  without  payment, 
was  equivalent  to  the  receipt  by  him  of  the  money  due  upon  it.  The 
note  was  for  money.  It  was  overdue.  If  the  defendant  had  paid  it, 
and  then  by  the  same  fraud  had  procured  the  money  to  be  paid  back, 
there  could  be  no  question.  But  to  both  parties  it  would  be  substan- 
tially the  same  as  procuring  the  note. 

The  action  is  maintainable  under  the  count  for  money  had  and  re- 
ceived for  fraudulently  obtaining  the  note  without  payment,  and 
the  same  rule  of  limitation  applies  that  is  applicable  to  an  action  for 
the  fraud.  Upon  the  report  of  the  referee  the  plaintiff  is  entitled  to 
recover  the  sum  of  $4,260.50  and  interest  from  August  26,  1873. 

Exceptions   sustained. 

Report  recommitted.'^^ 

Appleton,  C.  J.,  and  Dickerson,  Danforth  and  Virgin,-  JJ.,  con- 
curred.   Peters,  J.,  having  been  of  counsel,  did  not  sit. 

77  Israel  v.  Douglas.  1  H.  Bl.  2P,0  (1789:  disapproved  in  3  East,  109);  Hall 
V.  ITuckins,  41  Me.  574  (1856);  Emerson  v.  Baylies,  19  Pick.  (Mass.)  55  (1837); 
Perry  v.  Swasey,  12  Cush.  (Mass.)  30  (1S53) ;    Warren  v.  Batclielder,  16  N.  H. 


324  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

VICTORS  V.  DAVIES. 
(Court  of  Exchequer,  1844.    12  Mees.  &  W.  758.) 

Assumpsit.  The  dieclaration  stated,  that  the  defendant,  on  the  6th 
of  March,  1844,  was  indebted  to  the  plaintiff  in  the  sum  of  £10.,  for 
money  lent  by  the  plaintiff  to  the  defendant. 

Special  demurrer,  assigning  the  following  causes :  That  it  is  not 
alleged  in  the  declaration  that  the  money  was  lent  to  the  defendant 
at  his  request,  and  that  therefore  there  is  no  consideration  to  sup- 
port the  promise;  nor  does  it  sufficiently  appear  that  the  defendant 
was  indebted  to  the  plaintiff. 

Pearson,  in  support  of  the  demurrer. — The  declaration  is  insufficient 
for  want  of  the  averment  that  the  money  was  lent  to  the  defendant 
"at  his  request."  [AIvDERSON,  B. — How  can  there  be  a  lender  unless 
there  be  also  a  borrower?]  A  plaintiff  is  bound  to  allege  a  request, 
wherever  the  consideration  is  executed.  In  the  notes  to  Osborne 
V.  Rogers,  1  Saund.  264,  note  1,  it  is  said  that  "a  past  consideration 
is  not  sufficient  to  support  a  subsequent  promise,  unless  there  was  a 
request  of  the  party,  either  express  or  implied,  at  the  time  of  per- 
forming the  consideration."  And,  in  a  note  by  the  learned  editors 
of  the  fifth  edition,  it  is  added,  "So  even  an  affidavit  (to  hold  to  bail) 
of  diebt  for  money  lent  and  for  goods  sold  and  delivered,  and  for 
work  and  labour,  has  been  held  irregular,  because  it  omitted  to  state 
that  it  was  'at  the  instance  and  request  of  the  defendant,'  although 
it  stated  that  it  was  'to  and  for  his  use  and  on  his  account ;'  "  for 
which  they  cite  Durnford  v.  Messiter,  5  M.  &  S.  446.  In  Chitty  on 
Pleading,  vol.  I  (7th  Ed.)  p.  353,  it  is  also  said,  "In  each  of  these 
counts  upon  an  executed  consideration,  except  that  for  money  had 
and  received,  and  the  account  stated,  it  is  necessary  to  allege  that 
the  consideration  of  the  debt  was  performed  at  the  defendant's  re- 
quest, though  such  request  might,  in  some  cases,  be  implied  in  evi- 
dence." [Parke,  B. — There  is  a  very  learned  note  of  my  Brothei 
Manning  on  this  subject,''^  in  which  he  goes  into  the  whole  law  with 

5S0  (1S45);  Kent  v.  Watson,  46  N.  H.  148  (1865);  Linn  v.  Cook,  19  N.  J.  Law, 
11  (1842).  Accord. 

So  a  count  for  money  had  and  received  will  lie,  where  defendant  received 
a  negotiable  note  as  money.  Wilkinson  v.  Clay,  6  Taunt.  110  (1815);  Hem- 
meuway  v.  Bradford,  14  Mass.  121  (1817);  Willie  v.  Green,  2  N.  H.  333  (1821); 
Seavey  v.  Dana,  61  N.  H.  339  (1881)  semble. 

The  same  is  true  where  defendant  has  received  other  valuable  property  as 
money.  Pickard  v.  Bankes,  13  East,  20  (1810.:  country  bank  notes) ;  Spratt 
V.  Hobhouse,  4  Bing.  178  (1827:  nonnegotiable  claim  against  third  party); 
Miller  v.  Miller,  7  Pick.  (Mass.)  133,  19  Am.  Dec.  264  (1828 :  real  estate,  coal, 
part  money);  Earle  v.  Whiting.  196  Mass.  371,  82  N.  E.  32  (1907:  claim  of 
depositor  against  bank)  ;  Woodbury  v.  Woodbury,  47  N.  H.  11,  18,  90  Am. 
Dec.  555  (1866:  land) ;  Clark  v.  Pinney,  6  Cow.  (N.  Y.)  297  (1826:  nonnego- 
tiable note  of  third  party). 

But  the  receipt  of  property,  not  as  the  equivalent  of  money,  will  not  suf- 
fice. Nightingal  v.  Devisme.  5  Burr.  2589  (1770);  Leery  v.  Goodson,  4  D.  & 
E.    687    (1792).  Accord.     Longchamp   v.   Kenny,   1   Doug.    137   (1779).  Contra. 

78  1  M.  &  G.  265. 


i 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  325 

respect  to  alleging  a  request,  and  points  out  the  error  into  which 
Mr.  Serjeant  Williams  appears  to  have  fallen  in  his  comment  upon 
Osborne  v.  Rogers.  The  note  is  thus :  "The  consideration  being  ex- 
ecutory, the  statement  of  the  request  in  the  declaration,  though  men- 
tioned in  the  undertaking,  appears  to  have,  been  unnecessary.  In  Os- 
borne V.  Rogers,  the  consideration  of  a  promise  is  laid  to  be,  that 
the  said  Robert,  at  the  special  instance  and!  request  of  the  said  Wil- 
liam, would  serve  the  said  William,  and  bestow  his  care  and  labour 
in  and  about  the  business  of  the  said  William ;  and  the  declaration 
alleges,  that  Robert,  confiding  in  the  said  promise  of  William,  after- 
wards went  into  the  service  of  William,  and  bestowed  his  care  and 
labour  in  and  about  &c.  Here  the  consideration  is  clearly  execu- 
tory, yet  Mr.  Serjeant  Williams,  in  a  note  to  the  words  'at  the  spe- 
cial instance  and  request'  says,  'these  words  are  necessary  to  be  laid 
in  the  declaration,  in  order  to  support  the  action.  It  is  held,  that 
a  consideration  executed  and  past, — as,  in  the  present  case,  the  serv- 
ice performed  by  the  plaintiff  for  the  testator  in  his  lifetime,  for 
several  years  then  past, — is  not  sufficient  to  maintain  an  assumpsit, 
unless  it  was  moved  by  a  precedent  request,  and  so  laid.'  The  state- 
'ment,  according  to  modern  practice,  of  the  accrual  of  a  debt  for,  or 
the  making  of  a  promise  for  the  payment  of,  the  price  of  goods  sold 
and  delivered,  or  for  the  repayment  of  money  lent,  as  being  in  con- 
sideration of  goods  sold  and  delivered,  or  money  lent  to  the  defend- 
ant, at  his  request,  is  conceived  to  be  an  inartificial  mode  of  declar- 
ing. Even  where  the  consideration  is  entirely  past,  it  appears  to  b^ 
unnecessary  to  allege  a  request,  if  the  act  stated  as  the  considera- 
tion cannot,  from  its  nature,  have  been  a  gratuitous  kindness,  but 
imports  a  consideration  per  se.  It  being  immaterial  to  the  right  of 
action  whether  the  bargain,  if  actually  concluded)  and  executed,  or  the 
loan,  if  made,  and  the  monies  actually  advanced,  was  proposed  and 
urged  by  the  buyer  or  by  the  seller,  by  the  borrower  or  by  the  lender. 
Vide  Rastall's  Entries,  tit.  'Dette ;'  and  Co.  Ent.  tit.  'Debt.'  "  There 
cannot  be  a  claim  for  money  lent  unless  there  be  a  loan,  and  a  loan 
imports  an  obligation  to  pay.  If  the  money  is  accepted,  it  is  im- 
material whether  or  not  it  was  asked  for.  The  same  doctrine  will 
not  apply  to  money  paid ;  because  no  man  can  be  debtor  for  money 
paid,  unless  it  was  paid  at  his  request.  What  my  Brother  Manning 
says,  in  the  note  to  which  I  have  referred,  is  perfectly  correct.] 

Pollock,  C.  B.  There  cannot  be  a  doubt  about  this  case ;  the 
statement  that  the  money  was  lent  implies  that  it  was  advanced  at 
the  request  of  the  defendant.  There  must  be  judgment  for  the 
plaintiff'.  • 

Parke,  Alderson,  and  Rolfe,  BB.,  concurred. 

Judgment  for  the  plaintiff.'^ ^ 

7  9  Somerville  v.  Grim,  17  W.  Ya.  803.  810  (1881:    debt).  Accord. 
So  of  counts  for  goods  sold  or  sold  aud  delivered.     Canfield  v.  Merrick,  11 
Conn.  425  (1S3G:    goods  sold);    Duri'ill  v.  Lawrence,  10  Vt.  517  (1S3S :    goods 


326  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

CITY  OF  NEWPORT  NEWS  v.  POTTER. 

(Circuit  Court  of  Appeals,  1903.     122  Fed.  321,  58  C.   C.  A.  483.) 

McDowell,  District  Judge.®"  This  is  an  action  of  assiimpsit 
brought  in  the  Circuit  Court  for  the  Eastern  District  of  Virginia  by 
Alexander  Potter,  a  citizen  of  New  York,  against  the  city  of  Newport 
News.  There  was  a  verdict  and  judgment  for  $4,000  and  costs  in 
favor  of  the  plaintiff  below.  The  case  is  brought  here  by  the  city 
on  writ  of  error.     *     *     * 

On  June  27,  1898,  a  written  contract,  the  terms  of  which  had  in 
the  main  been  previously  agreed  on,  betvveen  Potter  and  the  city 
was  executed.  By  this  contract  Potter  agreed  to  supervise  and  su- 
perintend the  construction  of  the  sewer  system,  and  to  provide  at  his 
own  expense  such  engineers,  inspectors,  and  other  employes  as  might 
be  necessary  to  secure  compliance  by  the  contractor  with  the  plans  and 
specifications.  He  was  also  to  give  to  the  work  so  much  of  his  own 
time  and  talents  as  might  be  needed  to  thoroughly  protect  the  interests 
of  the  city,  and  to  see  that  the  work  of  the  contractors  was  done  in  a 
complete  and  satisfactory  manner.     *     *     * 

The  first  count  of  the  amended  declaration  is  based  on  the  theory  of 
an  express  contract  right  on  the  part  of  Potter  to  have  $25  per  day 
for  the  services  of  himself  and  his  employes.  The  second  and  third 
counts — there  are  but  three  counts — read  as  follows : 

"And  for  this  also,  to  wit,  that  the  defendant  is  indebted  to  plain- 
tiff in  the  sum  of  $8,150,  with  interest  thereon  from  the  16th  day  of 
July,  1900,  for  other  money  by  the  said  defendant,  before  that  time, 
had  and  received  to  and  for  the  use  of  said  plaintiff,  which  sum  the 
defendant  then  and  there  faithfully  promised  to  pay  to  plaintiff  when 
it,  the  defendant,  should  be  thereunto  afterwards  requested. 

"And  for  this  also,  to  wit,  that  the  defendant  is  indebted  to  the  plain- 
sold  and  delivered;  debt).  Accord.  McEwen  v.  Morey,  60  111.  32  (1871:  goods 
sold  and  delivered;  bad  on  special  demurrer)  semble.  Contra.  So  of  a  count 
for  money  had  and  received.  Somerville  v.  Grim,  17  W.  Va.  803,  810  (1881: 
debt). 

In  McCrary  v.  Brown,  157  Ala.  518,  50  South.  402  (1908),  the  court  said: 
"The  third  count  of  the  substituted  complaint,  which  is  a  common  count  for 
work  and  labor  done,  fails  to  aver  that  the  work  and  labor  was  done  at  the 
request  of  defendant.  This  defect  was  specifically  pointed  out  by  the  de- 
murrer interposed  to  the  count.  The  demurrer  should  have  been  sustained 
(Form  10,  in  Code,  p.  944;  2  Ency.  PI.  &  Pr.  1004),  non  constat  the  work 
and  labor  was  performed  gratuitously  or  the  'defendant  neither  accepted  nor 
received  the  benefit  of  such  labor."  Canfield  v.  Merrick,  11  Conn.  425,  429 
(ISoG)  semble.  Accord.  So  of  a  count  for  materials  furnished.  Carman  v. 
Scribner.  3  Houst.  (Del.)  554  (1867).  And  of  a  count  for  money  paid.  Mass. 
Co.  V.  Green.  185  ]\Iass.  306,  70  N.  E.  202  (1904).  Accord.  Somerville  v.  Grim, 
17  W.  Va.  80P,,  810  (1881).  Contra. 

If  the  count  alle£;es  acceptance  of  the  work,  an  allegation  of  request  Is 
not  necessary.  La  Fayette  Ry.  v.  Tucker,  124  Ala.  514,  27  South.  447  (1899). 
Accord.  Carman  v.   Scribner,  3  Houst.  (Del.)  554  (1867).  Contra. 

80  Part  of  the  opinion  omitted. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  327 

tiff  in  the  sum  of  $8,150.00,  with  interest  thereon  from  the  16th  day  of 
July,  1900,  for  services  rendered  the  defendant  by  the  plaintiff  at  the 
special  instance  and  recjuest  of  the  defendant." 

The  city  demurred  to  the  amended  declaration,  and  to  each  count, 
and  filed  written  grounds  of  demurrer.  The  demurrer  was  overruled. 
Thereupon  the  city  filed  a  plea  of  non  assumpsit  and  several  special 
pleas,  on  which  issue  was  joined,  raising  several  of  the  points  to  be 
hereinafter  considered.  The  first  assignments  of  error  are  based  on 
the  action  of  the  trial  court  in  overruling  the  demurrer. 

The  first  ground  of  demurrer  is  that  the  declaration  does  not  in 
any  count  allege  that  the  city  "had  authority  to  make  the  contract 
or  incur  indebtedness."  In  14  Ency.  PI.  &  Pr.  p.  243,  it  is  said  :  "When 
a  municipal  corporation  seeks  to  avoid  its  contract  on  the  ground  of 
its  want  of  power  to  contract,  and  the  contract  is  not  upon  its  face 
necessarily  beyond  the  scope  of  its  authority,  its  authority  to  make 
such  contract  will  be  presumed,  and  in  an  action  on  the  contract  the 
defense  of  ultra  vires  must  be  both  pleaded  and  proved."  See,  also, 
5  Ency.  PI.  &  Pr.  pp.  95,  96;  1  Dill.  Munic.  Corps.  (4th  Ed.)  §  457; 
4  Thomp,  Corps,  §  5644;  Green's  Brice,  Ultra  Vires,  p.  37.  Certainly 
a  contract  for  supervising  the  construction  of  a  city  sewer  is  not  upon 
its  face  necessarily  beyond  the  scope  of  the  city's  authority.  This 
ground  of  demurrer  was  not  well  taken. ^^ 

The  second  ground  of  demurrer  is  that  it  is  not  alleged  that  "the 
said  contract  was  let  and  concluded  as  prescribed  by  the  city  charter." 
Without  mentioning  other  reasons  why  this  ground  of  demurrer  is 
bad,  it  is  sufficient  to  say  that  the  authorities  above  cited  fully  sustain 
the  action  of  the  trial  court  in  this  respect. 

The  third  ground  of  demurrer  is  "that  the  said  declaration  does  not, 
nor  does  any  count  thereof,  contain  any  allegation  sufiiciently  certain 
that  the  defendant  promised  to  pay  plaintiff  the  sum  declared  for  in 
said  declaration."  In  the  first  and  second  counts  the  allegation  of  the 
promise  to  pay  is  made.  This  ground  therefore  relates  only  to  the 
third  count,  which  is  the  common  count  of  indebitatus  for  services 
rendered,  omitting  the  usual  allegation  of  a  promise  to  pay.  Undei 
the  strict  rule  of  the  common  law,  this  allegation  is  necessary.^^     1 

81  No  such  allegation  is  necessary  in  a  common  count.  Folsom  v.  School 
Dist.,  91  111.  402  (1879).  The  rule  is  the  same  concerning  a  special  count. 
Montague  v.  School  Dist.,  .34  N.  J.  Law,  218  (1870:  debt);  Brown  v.  Point 
Pleasant,  36  W.  Va.  290,  300,  15  S.  E.  209  (1892).  Possilily,  if  the  power 
were  one  such  a  corporation  presumptively  did  not  have,  the  rule  would  be 
different.     Frye  v.  Bank,  10  111.  332  (1S4S:    bill  in  equity). 

So  other  affirmative  defenses  need  not  he  overthrown  by  the  declaration. 
Whitall  V.  Morse.  5  Serg.  &  R.  (Pa.)  358,  362  (1819:  prevention  by  plaintiff); 
Ware  v.  Webb,  32  Me.  41  (1850:  statute  of  limitations);  Dean  v.  Crall,  98 
Jlich.  591,  57  N.  W.  813,  39  Am.  St.  Rep.  571  (1894:  need  not  allege  an  es- 
toppel against  defendant  setting  up  any  given  defense). 

82  Bedford  v.  Ussington,  1  Sid.  306  (1666) ;  Head  v.  Baldry,  6  A.  &  E.  459 
(1837);  Maddox  v.  Brown,  9  Port.  (Ala.)  118  (18.39)  semble;  Turner  v.  Jen- 
kins, 1  Har.  &  G.  (Md.)  161  (1827) ;    Swem  v.  Sharretts,  48  Md.  408  (1878; 

Whit.C.L.Pl.— 22 


328  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

Chitty,  PI.  (16th  Am.  Ed.)  pp.  392,  394;  4  Minor's  Insts.  (3d  Ed.)  p. 
697;  Cooke  v.  Simms,  6  Va.  39;  Winston  v.  Francisco,  2  Va.  188; 
Sexton  V.  Holmes,  17  Va.  566;  Wooddy  v.  Flournoy,  20  Va.  506.  But 
contra,  Andrews'  Stephens,  PI.,  note,  pp.  110,  111.  However,  section 
3272,  Code  Va.  1887,  reads : 

"On  a  demurrer  *  *  *  the  court  shall  not  regard  any  defect 
or  imperfection  in  the  declaration  or  pleadings,  whether  it  has  been 
heretofore  deemed  mispleading  or  insufficient  pleading  or  not,  unless 
there  be  omitted  something  so  essential  to  the  action  or  defence,  that 
judgment  according  to  law  and  the  very  right  of  the  cause,  can  not  be 
given.     *     *     * " 

This  statute,  taken  from  27  Eliz.  c.  5,  first  appeared  in  the  Code  of 
1819  (1  Rev.  Code  1819,  p.  511,  c.  128,  §  101),  subsequent  to  the  insti- 
tution of  the  cause  of  Wooddy  v.  Flournoy,  supra.  Our  attention  has 
not  been  called  to,  nor  have  we  found,  any  Virginia  case  decided  since 
this  statute  was  enacted  which  holds  that  a  promise  to  pay  must  be  al- 
leged in  the  common  count  of  indebitatus  assumpsit. 

When  the  plaintiff  alleges  that  the  defendant  is  indebted  to  him  for 
services  rendered  at  the  request  of  the  defendant  he  has  said  enough  to 
imply  a  promise  by  the  defendant  to  pay  for  the  services.  The  com- 
mon-law rule  requiring  that  a  promise,  not  expressly  made  but  implied 
by  law,  must  be  averred,  is  so  highly  technical  that  we  cannot,  having  in 
view  the  statute  above  quoted,  hold  that  the  trial  court  committed  error 
in  refusing  to  sustain  the  demurrer  on  this  ground.     *     *     * 

Affirmed. 


YONG  DEN  V.  H.  R.  HITCHCOCK. 

(Supreme  Court  of  the  Hawaiian  Islands,  1S9S.     11  Hawaii,  270.) 

Frear,  J.^^  This  is  assumpsit  for  $25.  The  complaint  contains 
three  paragraphs.  The  first  is  a  count  for  money  had  and  received, 
except  that  the  breach  is  not  set  forth  therein.  The  second,  entitled 
"Second  Count,"  sets  forth  more  particularly  how  the  money  w^as  re- 
ceived, namely,  by  being  taken  from  the  plaintiff's  person  by  a  police- 
man and  by  him  placed  in  the  control  of  his  official  superior  and  Dep- 
uty Marshal,  the  defendant.  This  paragraph  also  does  not  set  forth  a 
breach  of  the  promise  alleged  therein.  The  third  paragraph  sets  forth 
that  the  defendant  "not  regarding  his  said  several  promises  and  un- 

rule  changed  by  statute)  senible ;  Morgantown  Banlc  v.  Foster,  35  W.  Va.  357, 
363,  13  S.^E.  996  (1S91)  semble.  Accord.  Potomac  Laundry  v.  Miller,  26  App. 
D.  C.  230  (1905:  rule  of  court);  Candler  v.  Rossiter,  10  Wend.  (N.  Y.)  4S7 
(1S33)  semble.  Contra. 

The  same  is  true  of  a  common  count  on  a  quasi  contract.  Wingo  v.  Brown, 
12  Rich.  (S.  C.)  279  (1859);  Robinson  v.  Welty,  40  W.  Va.  385,  392,  22  S.  E. 
73   (1895).  Accord.     Wheeler  v.  Wilson,  57   Vt.  157  (1SS4).  Contra. 

88  Part  of  the  opinion  omitted. 


Ch.  1)  SPECIAL   AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  329 

dertakings  has  not  paid  the  said  several  sums  of  money,  or  either  o£ 
them,"  etc. 

The  defendant  demurred  upon  the  following  grounds : 
"1.  That  complaint  does  not  state  a  cause  of  action.     *     *     *  " 
The  District  Magistrate  sustained  the  demurrer  and  the  plaintiff  ap- 
pealed to  this  court. 

If  either  count  is  good,  the  demurrer  should  have  been  overruled. 
In  our  opinion  neither  count  is  shown  to  be  bad. 

The  objection  to  the  first  count  is  that  it  is  incomplete  in  that  it 
does  not  show  a  breach.  But  a  breach  is  shown,  namely,  in  the  third 
paragraph  of  the  complaint.  This  is  a  separate  paragraph  and  was 
intended  to  apply  to  both  counts,  as  is  evident  from  the  expressions, 
"several  promises  and  undertakings,"  "several  sums"  and  "either  of 
them."     *     *     * 

The  judgment  appealed  from  is  reversed  and  the  case  remanded  to 
the  District  Court  for  such  further  proceedings  as  may  be  proper.^* 


POWELL  v.  WILLIAMS. 

(Supreme  Court  of  Michigan,  1S94.     99  Mich.  30,  57  N.  W.  1041.) 

Error  to  circuit  court,  Wayne  County;  Cornelius  J.  Reilly,  Judge. 
Assumpsit  by  John  H.  Powell,  as  assignee  of  William  C.  Ross, 
against  Thomas  H.  B.  Williams.  From  a  judgment  for  plaintiff,  de- 
fendant appeals.    Reversed. 

Hooker,  J.  The  plaintiff  brought  an  action  to  recover  the  price  of 
certain  lumber  sold  to  the  defendant  by  William  Ross,  basing  his  right 
to  recover  upon  an  assignment  for  the  benefit  of  creditors  made  by 
Ross  to  him.  The  following  is  what  the  record  shows  about  the  plead- 
ings :  "Declaration :  Assumpsit  on  the  common  counts,  each  count 
stating  a  cause  of  action  in  favor  of  the  plaintiff,  'John  H.  Powell,  as- 
signee,' and  against  the  defendant,  the  name  of  William  C.  Ross  being 
nowhere  mentioned  in  the  declaration.  Amended  Declaration:  At  a 
former  trial  of  the  case  the  declaration  was  twice  amended,  as  appears 
in  the  testimony  of  William  C.  Ross,  infra.  For  convenience  the 
amendments  are  here  repeated.  The  first  amendment  added  the  words, 
'John  H.  Powell,  assignee  William  C.  Ross,  who  has  made  an  assign- 
ment in  favor  of  his  creditors,  for  and  in  behalf  of  said  creditors,  plain- 
tiff herein.'  Upon  suggestion  of  the  court,  the  date  of  the  assignment, 
March  12,  1891,  was  also  added.     The  third  amendment  added  the 

8  4  Buttervvorth  v.  Le  Despeucer,  P,  M.  &  S.  150  (1S14) ;  Beardsley  j.  South- 
mayd,  14  N.  J.  Law,  534,  543  (1S35)  semble;  Farnsworth  v.  Nason,  Brayton 
(Vt.)  192  (1819)  semble.  Accord. 

A  breach  must  be  alleged.  Dalton  v.  Smith,  Smith,  618  (1805)  semble; 
Cobbett  V.  Cochrane,  8  Bing.  17  (1831)  semble;  Rider  v.  Bobbins,  13  Mass. 
284  (1816)  semble;    Metcalf  v.  Robinson,  Fed.  Cas.  No.  9,497  (1841). 

In  Douglass  v.  Central  Land  Co.,  12  W.  Va.  502,  510  (1878),  the  court  held 
that  it  must  appear  that  the  debt  has  not  been  paid  before  suit. 


330  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

words :  'And  who  is  now  the  owner  and  possessor  of  all  claims  and 
demands  against  the  defendant  herein  named.'  The  foregoing  are  all 
the  amendments  to  the  declaration,  which  still  remained  in  the  common 
counts  in  the  name  of  Powell  as  plaintiff.    Plea,  general  issue." 

The  testimony  tended  to  show  the  sale  of  lumber  by  Ross  to  defend- 
ant, and  the  balance  due  thereon,  and  also  the  assignment  for  the  bene- 
fit  of  creditors  from  Ross  to  plaintiff.  All  testimony  was  taken  under 
objection  and  exception,  and  the  court  was  requested  to  take  the  case 
from  the  jury  on  the  ground  of  a  variance.  This  declaration  nowheie 
alleges  that  Williams,  the  defendant,  was  indebted  to  Ross,  or  that  he 
was  being  sued  for  any  such  claim.  It  distinctly  states  that  the  goods 
were  sold  and  delivered  by  the  plaintiff.  The  amendments  do  not 
help  it  in  this  particular,  for  they  merely  state  that  plaintiff  is  the  as- 
signee of  Ross  by  assignment  dated  March  12,  1891,  and  that  he  is 
now  the  owner  and  possessor  of  all  claims  and  demands  against  the 
defendant.  Had  it  alleged  that  the  defendant  was  indebted  to  Ross  for 
goods  sold  and  delivered  by  him  (Ross)  to  the  defendant,  and  that  the 
claim  of  said  Ross  had  been  by  him  assigned  to  the  plaintiff,  it  would 
have  correctly  stated  the  facts  which  the  plaintiff  appears  to  have  been 
trying  to  prove.  Peirce  v.  Closterhouse,  96  Mich.  124,  55  N.  W.  663, 
and  cases  cited.     See,  also,  Barnum  v.  Stone,  27  Mich.  332. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered.  The  other 
justices  concurred.^ ^ 


McLEOD  V.  POWE  &  SMITH. 

(Supreme  Court  of  Alabama,  1847.     12  Ala.  9.) 

Writ  of  Error  to  the  Circuit  Court  of  Wilcox. 

Assumpsit  by  McLeod,  as  executor  of  R.  G.  Gordon,  against  Powe 
&  Smith.    The  cause  of  action  set  forth  in  the  declaration  is  this : 

On  the  7th  February,  1842,  the  marshal  of  the  United  States  for 
the  southern  district  of  Alabama,  having  an  execution  in  hand  issued 
from  the  circuit  court  for  that  district,  in  favor  of  one  Clapp  for  $3,- 

8  5  If  an  indebtedness  to  a  third  party  is  alleged,  tbe  count  must  aver  trans- 
fer to  the  plaintiff.    University  v.  Baxter,  42  Vt.  99,  103  (1SG9). 

In  a  special  count  alleging  a  contract  with  a  tbird  party  a  transfer  to  the 
plaintiff  must  appear.  Sistermans  v.  Field,  9  Gray  (Mass.)  331  (1S57);  Rose 
V.  Jackson,  40  Mich.  29,  34  (1S79);  De  Forest  v.  Frary,  6  Cow.  (X.  Y.)  151 
(1S26) ;  McNeil  v.  Golden  Cross,  131  Pa.  339,  18  Atl.  899  (1S90) ;  University 
V.  Baxter,  42  Vt.  99  (1869). 

So  of  a  common  count  in  debt.  Commonwealth  v.  Leonard,  10  Wkly.  Notes 
Cas.  (Pa.)  537  (1881).  Of  a  special  count  in  debt  on  a  note.  Hamilton  v. 
Ewing,  6  Blackf.  (Ind.)  88  (1841);  Camp  v.  Bank,  10  Watts  (Pa.)  130  (1840). 
Of  a  count  in  debt  on  a  specialty.  Sprowl  v.  Lawrence,  33  Ala.  674,  692 
(1859);  Taylor  v.  Auditor,  2  Ark.  174,  187  (1840);  Lindsay  v.  Mclnerney,  62 
X.  J.  Law,  524,  41  Atl.  701  (1S98);  Wiley  v.  Cannon,  8  Humph.  (Tenn.)  10 
(1847).  And  of  a  count  in  covenant.  Leon  v.  Kerrison,  47  Fla.  178,  36 
South.  173  (1904);  Harris  v.  Campliell,  4  Dana  (Ky.)  586  (1836);  Carter  v. 
Denman,  23  N.  J.  Law,  260,  275  (1852)  senible. 


Ch.  1)  SPECIAL   AND   GENERAL   (INDEBITATUS)    ASSUMPSIT  331 

558,  with  interest  from  the  4th  of  January,  1838,  against  one  A,  K. 
Smith,  levied  the  same  on  certain  slaves  as  his  property.  Whilst  the 
slaves  were  thus  under  levy,  Gordon,  in  consideration  of  the  natural 
love  and  affection  which  he  bore  to  his  sister,  she  being  the  wife  of 
said  A.  K.  Smith,  and  for  other  considerations,  contracted  and  agreed 
with  Smith,  both  verbally  and  in  writing,  dated  the  12th  March,  1842, 
to  become  the  purchaser  of  the  slaves  at  the  marshal's  sale,  and  on 
the  11th  March,  1842,  did  become  the  purchaser  at  that  sale  of  the 
slaves,  at  the  sum  of  $4,832.  It  was  further  agreed  to  leave  the  slaves 
in  the  possession  of  Smith  until  the  1st  of  January,  1844.  It  was  fur- 
ther agreed,  that  on  the  payment  of  the  said  sum  of  $4,832  by  Smith 
to  Gordon,  on  the  1st  January,  1844,  that  the  said  slaves  should  revest 
in,  and  the  title  be  reconveyed  to  the  said  Smith.  Gordon  and  Smith 
both  departed  this  life  previous  to  the  1st  January,  1844,  and  previous 
to  any  payment  of  the  said  sum,  and  after  the  death  of  Smith,  the 
slaves  went  to  the  possession  of  the  defendants  as  administrators  of 
his  estate,  as  did  also  the  written  agreement  evidencing  the  said  con- 
tract for  reconveyance.  On  the  26th  December,  1843,  the  defendants, 
with  a  view  to  carry  out  the  said  contract,  tendered  to  the  said  plaintiff, 
as  the  executor  of  Gordon,  the  sum  of  $4,832.  This  tender  the  plain- 
tiff refused,  and  the  said  slaves,  on  the  1st  January,  1844,  were,  and 
ever  since  then  have  remained  in  the  possession  of  the  defendants. 

On  the  1st  January,  1844,  the  plaintiff  demanded  the  slaves  from 
the  defendants,  and  afterwards,  on  the  12th  December,  1844,  com- 
menced an  action  of  detinue  against  the  defendants  to  recover  the  same 
in  the  circuit  court  of  Wilcox  county.  To  this  action  the  defendants 
pleaded  the  tender  aforesaid,  and  by  reason  of  this  plea  and  the  proof 
to  sustain  it,  a  verdict  was  found  for  the  defendants  at  the  spring  term, 
1846. 

The  declaration  then  proceeds  with  the  averment  that  the  defend- 
ants have  never  paid  the  plaintiff  the  said  sum  of  $4,832  so  tendered 
as  aforesaid,  but  that  they  still  hold  the  same  as  his  money  as  execu- 
tor. Also  that  the  estate  of  Smith  was  represented  by  the  defendants 
as  administrators  to  be  insolvent,  and  it  was  so  declared  by  the  proper 
court.  That  in  the  schedules,  &c.  of  this  report,  no  return  was  made 
of  said  money  as  assets  of  Smith's  estate.  It  then  proceeds  to  aver 
a  demand  of  the  said  sum  from  the  defendants  on  the  1st  Januarv, 
1846,  and  their  promise  to  pay  the  plaintiff  as  executor,  and  concludes 
with  a  super  se  assumpsit. 

The  defendants  demurred  to  this  declaration,  and  the  court  gave 
judgment  in  their  favor.    This  is  the  only  error  assigned. 

GoLDTHWAiTE,  J.  1.  The  pleader  here,  instegid  of  relying  on  the 
general  allegations  that  the  defendants  have  received  money  to  his 
own  use  or  admitted  their  indebtedness  by  an  account  stated,  has  pre- 
ferred to  state  the  facts  from  which  he  deduces  their  indebtedness  as 
a  legal  conclusion.  We  are  not  aware  of  any  sufficient  reason  why 
this  course  may  not  be  pursued,  as,  when  all  is  said  against  it,  no 


332  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

other  question  is  presented  by  the  demurrer  than  would  be  if  the  same 
facts  were  shown  in  evidence  and  a  general  charge  demanded  as  to 
their  sufficiency  to  entitle  the  plaintiff  to  recover  on  the  common 
counts.  We  shall  therefore  proceed  to  consider  whether  the  facts 
stated  authorise  the  party  suing  the  defendants  personally,  and  not  in 
their  representative  character.^® 

2.  The  result  of  the  allegations  is,  that  tl-2  plaintiff's  testator  entered 
into  a  contract  to  convey  the  title  to  certain  slaves  to  the  defendant's 
intestate,  if  a  certain  sum  of  money  was  paid  him  at  a  certain  time — 
that  this  money  was  tendered  by  the  defendants,  as  administrators,  to 
the  plaintiff  as  executor — that  it  was  refused  by  him — and  that  this 
refusal  had  the  effect  to  destroy  his  title  as  executor  to  the  slaves, 
as  well  as  to  vest  them  in  the  defendants  as  administrators  of  their 
intestate.  The  legal  question  presented  is,  whether  the  defendants  by 
this  act  of  tender  are  to  be  held  responsible  in  their  individual  capacity 
for  the  money  which  the  plaintiff  then  refused  to  accept,  but  which  he 
subsequently  demanded. 

l^lisrejs^no  question  that  the,effec'LQf_the  tender  was  to  revest  the 
title  to  the  slaves  agreed  toiiexonveyed-xm  the  ^>aytHcnt  of  tht  specified 
'rsnm  at  the  appointed  tim£_  This  is  one  of  the  points  decided  in  Sewall 
V.  Henry,  9  Ala.  24.  The  consequence  of  the  reinvesting  of  the  title 
is,  that  the  plaintiff  by  the  same  act  became  invested  with  the  title  to 
the  money.  Thus,  in  Lamb  v.  Lathrop,  13^  Wend.  95,  there  had  been 
a  contract  to  deliver  specific  articles,  and  although  the  court  considered 
the  contract  was  at  an  end  when  the  articles  were  tendered,  yet  they 
held  the  effect  of  the  tender  and  refusal  was  to  create  the  relation 
of  bailor  and  bailee  between  the  parties.  By  the  tender  in  this  case 
the  money  which  previously  belonged  to  the  estate  of  Sm.ith  became 
the  property  of  the  estate  of  Gordon,  and  the  defendants,  after  the 
tender,  held  it,  not  in  their  capacity  of  administrators  of  Smith,  but  as 
individual  bailees  of  the  plaintiff  as  executor  of  Gordon.  In  this  view 
it  seems  clear  the  action  is  sustainable  against  the  defendants  as  in- 
dividual bailees  of  the  money,  and  that  as  such  they  are  responsible  to 
the  executor  of  Gordon.   ^ 

Judgment  reversed  and  cause  remanded. 

86  Simmonds  v.  Parminter,  1  Wilson  185  (1747) ;  White's  Ex'r  v.  Woodruflf, 
1  Root  (Conn.)  309  (1791);  Gooding  v.  Kingston,  20  Mich.  439  (1S70) ;  Tre- 
i^ent  V.  Maybee,  54  Mich.  226,  19  N.  W.  9G2  (1884) ;  Hersey  v.  Northern  Assur. 
Co.,  75  Vt.  441,  56  Atl.  95  (1903);  Maloney  v.  Barr,  27  W.  Va.  381  (1886); 
Houston  V.  McNeer,  40  W.  Va.  365,  22  S.  E.  80  (1895).  Accord. 

The  special  facts  alleged  roust  show  a  debt.  Lyon  v.  Alvord,  18  Conn.  66, 
79  (184G);  Mclntyre  v.  Thompson,  14  111.  App.  554  (1884);  Hall  v.  Smith,  17 
Va.  550  (1811). 

The  count  must  state  a  promise.  Smith  v.  Cox,  11  M.  &  W.  475  (1843: 
possibly  special  assumpsit);  Ferguson  v.  Khoades,  7  Blackf.  (Ind.)  262  (1844); 
Candler  v.  Rossiter.  10  Wend.  (N.  Y.)  488  (1833) ;  Wingo  v.  Brown,  12  Rich. 
(S.  C.)  279  (1859) ;  Charleston,  Town  of,  v.  Stacy,  10  Vt.  562  (1838) ;  Cooke  v. 
Simms,  6  Va.  39  (1799).  Also  a  breach.  Metcalf  v.  Robinson,  Fed.  Cas.  No, 
9.497  (1841). 


Ch.  1)  SPECIAL  AND   GENERAL,   (INDEBITATUS)   ASSUMPSIT  333 


WAID  V.  DIXON. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1904.     55  W.  Va.  191,  46  S.  E. 

91S.) 

Error  to  Circuit  Court,  Greenbrier  County;  J.  M.  McWhorter, 
Judge. 

Action  by  William  S.  Waid  against  John  T.  Dixon.  Judgment  for 
plaintiff,  and  defendant  brings  error.    Reversed. 

Dent,  J.  John  T.  Dixon,  defendant,  complains  of  a  judgment  of 
the  circuit  court  of  Greenbrier  county  in  favor  of  William  S.  Waid 
for  the  sum  of  $362.50,  rendered  the  4th  day  of  May,  1903. 

The  first  error  relied  on  is  the  overruling  of  the  demurrer  to  the 
declaration,  and  each  count  or  allegation  thereof.  The  declaration  is 
as  follows,  to  wit : 

"The  State  of  West  Virginia.  In  the  Circuit  Court  of  Greenbrier 
County,  to  wit :  Wm.  S.  Waid  .complains  of  John  T.  Dixon,  defend- 
ant, of  a  plea  of  trespass  on  the  case,  for  this,  to  wit:    That  whereas, 

on  the  day  of  January,  1899,  the  defendant,  John  T.  Dixon, 

then  and  still  a  resident  of  the  said  county  and  state,  was  the  owner  of 
large  tracts  of  timbered  lands  lying  in  the  county  of  Buchanan  and 
Russell,  in  the  state  of  Virginia,  and  also  the  owner  of  a  valuable  steam 
engine,  sawmill,  and  fixtures  complete  and  ready  for  sawing  and  man- 
ufacturing logs  into  lumber.  That  on  the  19tli  day  of  January,  1899, 
aforesaid,  the  said  defendant  induced  said  plaintiff  to  agree  to  go  upon 
said  tracts  of  land  and  saw  and  manufacture  all  the  logs  put  to  said 
sawmill  into  lumber,  and  entered  into  a  contract  with  plaintiff  by  which 
defendant  leased  or  hired  his  said  sawmill  and  fixtures,  engine,  etc., 
to  said  plaintiff  for  twelve  months  at  the  price  of  eleven  hundred  dol- 
lars, and  on  the  same  day  the  said  defendant,  John  T,  Dixon,  through 
his  agent,  and  in  the  name  of  his  agent,  John  C.  Hunter,  entered  into 
a  contract  with  this  plaintiff  whereby  plaintiff  agreed  to  saw  and  stack 
all  the  oak  and  poplar  timber  bought  of  Albert  Pack,  trustee,  and  oth- 
ers, and  located  on  Grisson  creek,  in  Buchanan  county,  Virginia,  for 
said  defendant,  John  T.  Dixon,  at  the  price  of  $3.50  per  M  for  com- 
mon and  better  oak,  $2.75  for  common  and  better  poplar,  and  $1.38 
for  poplar  culls,  to  be  paid  by  the  defendant  to  the  plaintiff  each  month 
on  the  20th  of  the  month  following  that  on  which  the  lumber  was 
sawed.  That  said  contracts  were  made  and  entered  into  at  Ronceverte, 
in  the  county  of  Greenbrier,  aforesaid.  That  under  the  contract  afore- 
said with  said  defendant  the  said  steam  engine,  sawmill,  and  fixtures 
were  to  become  the  property  of  plaintiff  at  the  expiration'  of  the  said 
twelve  months.  That  said  plaintiff,  in  pursuance  of  said  contract,  at 
great  cost  and  expense  to  him,  went  at  once  and  took  possession  and 
control  of  said  engine,  sawmill,  and  fixtures,  and  set  the  same  as  di- 
rected by  the  defendant  on  defendant's  land  at  Grisson  creek,  in  the 
county  of  Buchanan,  as  aforesaid,  and  sawed  at  the  least  five  hundred 


334  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

thousand  feet  of  lumber  of  the  classes  and  grades  set  forth  in  said 
contract,  and  as  ordered  and  directed  by  defendant.     That  in  May, 

1899,  plaintiff  in  pursuance  of  the  order  and  direction  of  defendant, 
moved  his  said  engine,  sawmill,  and  fixtures  to  a  second  set  on  said 
land  on  Grisson's  creek,  and  at  said  second  set  sawed  for  defendant  at 
the  least  six  hundred  thousand  feet  of  lumber  of  the  classes  and 
grades  set  forth  in  said  contract,  and  as  directed  by  the  defendant,  and 
at  his  request.  That  about  the  1st  of  September,  1899,  and  while 
plaintiff  was  sawing-  at  said  second  set  with  hands  employed,  said  de- 
fendant ordered  the  sawing  to  stop,  and  the  mill  to  be  closed  for  two 
months,  without  the  consent  and  over  his  protest,  and  to  his  injury, 
loss,  and  damage.  That  in  November,  1899,  the  defendant  ordered  the 
engine,  sawmill,  and  fixtures  to  be  moved  and  set  up  at  Bartontown, 
or  near  there.  That  plaintiff,  at  heavy  costs  moved  the  said  engine, 
sawmill,  and  fixtures  in  pursuance  of  said  directions,  and  at  the  request 
of  said  defendant,  and  set  the  same  up  at  the  place  near  said  Barton- 
town,  where  he  operated  until  April,  1900,  sawing  at  this  set  at  least 
five  hundred  thousand  feet  of  lumber  of  the  classes  and  grades  set 
forth  in  said  contract,  and  as  directed  and  requested  by  said  defend- 
ant. That  in  April,  1900,  at  the  request  and  directions  of  said  defend- 
ant, plaintiff  again  moved  said  engine,  sawmill,  and  fixtures,  at  great 
cost  and  expense,  to  Hart  creek,  in  Russell  county,  Virginia,  and  then 
again  set  up  the  same  at  defendant's  land,  and  operated  until  July, 

1900,  and  at  this  set  sawed  at  the  least  two  hundred  and  fifty  thou- 
sand feet  of  lumber  of  the  classes  and  grades  named  in  said  contract, 
and  as  directed  and  requested  to  do  by  said  defendant.  That  at  all  of 
said  sets,  and  at  each  one  of  them,  plaintiff"  sawed  the  lumber  and 
trimmed  the  same  in  a  workmanlike  manner,  and  as  required  by  his 
contract,  and  in  every  way  complied  with  his  contract,  but  the  defend- 
ant did  not  in  any  instance  comply  with  his  part  of  the  contract.  Plain- 
tiff further  avers:  That  about  the  last  of  July,  1900,  said  defendant 
stopped  logging  the  mill,  and  ordered  said  sawing  to  stop,  and  said 
sawmill  to  be  closed  down,  at  a  time  when  plaintiff  had  men  employed 
and  at  work,  without  plaintiff's  consent  or  agreement,  and  refused  to 
allow  plaintiff  to  complete  the  job  at  that  set,  estimated  at  one  million 
feet  of  lumber,  to  the  great  injury,  loss,  and  damage  to  plaintiff. 
Plaintiff  further  avers  that  at  the  expiration  of  the  twelve  months  set 
out  in  the  said  contract,  to  wit,  on  the  19th  day  of  January,  1900,  he, 
by  and  with  the  consent  of  said  defendant,  took  complete  possession 
and  control  of  said  steam  engine,  sawmill,  and  fixtures,  and  absolute 
ownership  of  the  same.  That  when  said  defendant  ordered  the  work 
to  stop  and  the  mill  closed  in  July,  1900,  he  represented  to  plaintiff  that 
the  work  would  only  be  stopped  about  two  months,  and  then  resumed. 
That  defendant  would  see  and  undertook  that  the  steam  engine,  saw- 
mill, and  all  the  machiner}^  and  fixtures  attached  and  belonging  thereto 
would  be  properly  and  safely  taken  care  of  and  kept  in  good  condi- 
tion and  ready  for  work  when  the  work  began  at  the  expiration  of  said 


I 


Ch.  1)  SPECIAL   AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  335 

two  months.  That  at  the  expiration  of  said  time  plaintiff  was  ready- 
to  resume  the  work  of  sawing,  but  defendant  refused  to  permit  plain- 
tiff to  resume  work,  and  refused  to  do  anything  to  carry  out  his  part 
of  the  contract.  Plaintiff  further  avers :  That  the  defendant  failed, 
neglected,  and  refused  to  furnish  plaintiff  means  to  carry  on  his  work 
of  sawing  under  the  contract,  as  defendant  was  bound  and  agreed  to 
do ;  and  in  consequence  of  said  neglect,  failure,  and  refusal  of  said 
defendant  to  furnish  plaintiff  with  such  means  plaintiff,  in  order  to 
carry  on  the  work  for  defendant,  was  compelled  to  seek  credit  to  meet 
his  expenses,  and  to  mortgage  the  said  steam  engine,  sawmill,  machin- 
ery, and  fixtures  by  giving  deed  of  trust  thereon,  and  that  said  steam 
engine  and  sawmill  was  sold  away  from  plaintiff  to  meet  the  debts  so 
incurred  at  the  price  of  $300.  That  said  defendant,  instead  of  seeing  "r 
that  said  steam  engine,  sawmill,  machinery,  and  fixtures  were  well 
cared  for  and  protected,  and  kept  safe  and  in  good  condition,  as  he 
agreed  to  do,  permitted,  as  plaintiff  is  informed,  John  Hunter  and  Da- 
vid Gambell  to  use  and  occupy  the  mill  and  saw  with,  and  permitted 
said  engine,  sawmill,  machinery,  and  fixtures  to  stand  out  in  the  weath- 
er unprotected,  so  that  the  belting  and  many  valuable  parts  of  the  mill 
and  machinery  were  carried  away,  stolen,  and  destroyed,  to  such  an 
extent  that  the  whole  that  was  left  thereof  was  sold  at  said  sum  of 
$300;  and  all  this  entailed  heavy  loss,  injury,  and  damage  to  plaintiff', 
to  wit,  $3,000.  Plaintiff  avers  that  he  kept  and  performed  his  contract 
in  every  particular,  and  was  always  ready  and  willing  to  fulfill  his 
part  of  the  contract  in  every  particular ;  that  the  lumber  he  sawed  was 
taken  by  defendant  and  placed  upon  the  market,  or  taken  into  the  pos- 
session of  said  defendant;  that  said  defendant  kept  monthly  estimates 
of  the  lumber;  and,  although  plaintiff  sawed  nearly  two  millions  of 
feet  of  lumber  for  defendant,  defendant  has  not  settled  for  the  same, 
or  accounted  to  plaintiff,  although  often  requested  to  do  so.  Yet  the 
said  defendant,  so  being  informed  of  the  amount  and  value  of  the  lum- 
ber sawed  by  plaintiff,  and  of  his  obligations  under  said  contract  to 
plaintiff,  and  utterly  disregarding  the  rights  of  plaintiff  in  neglecting, 
refusing  and  failing  to  furnish  plaintiff  means  to  carry  on  his  work 
under  said  contract,  and  in  refusing  to  permit  plaintiff  to  finish  the 
job  of  sawing  at  Hart's  creek,  and  ordering  the  work  to  stop  and  the 
mill  to  be  closed,  and  refusing  and  failing  to  allow  plaintiff  to  resume 
that  work  and  complete  the  job  of  sawing,  and  in  neglecting,  failing, 
and  refusing  to  look  after  and  take  care  of  said  engine,  sawmill,  ma- 
chinery, and  fixtures  as  he  agreed  to  do,  and  permitting  the  same  to 
be  used  and  the  belting  and  other  parts  of  the  machinery  and  fixtures 
to  be  carried  away,  stolen,  and  destroyed,  and  in  refusing  to  account 
to  plaintiff'  and  pay  for  the  lumber  sawed  for  him  by  the  plaintiff',  and 
in  neglecting,  refusing,  and  failing  to  carry  out  his  contract  and  fur- 
nish plaintiff  means  to  keep  up  his  work,  and  thereby  forcing  plaintiff 
to  suffer  his  valuable  machinery  to  be  taken  from  him  and  sold,  and  in 
depriving  plaintiff  of  the  labor  and  profits  he  was  justly  entitled  to 


336  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

possess  and  enjoy  by  sawing  the  timber  left  unsawed  at  Hart's  creek 
when  defendant  ordered  the  work  stopped,  but  wholly  neglected  so 
to  do.  And  by  reason  of  all  this  bad  care,  negligence,  and  default  of 
said  defendant  in  complying  with  his  contract  and  obligations  to  plain- 
tiff, as  hereinbefore  set  forth,  although  often  requested  so  to  do,  said 
plaintiff  has  been  greatly  wronged,  and  caused  to  pay  out  money,  and 
suffer  great  injury,  loss,  and  damage  to  the  said  plaintiff  three  thou- 
sand dollars.     And  therefore  he  sues.     John  W.  Arbuckle,  P.  Q." 

^rom  an  inspection  of  this  declaration  it  is  impossible  to  say  wheth- 

er  the  draftsman  thereof  intended  it  to  be  a^dedaHnQn^far  trespass  ^ 

trn  the  case  or  trespass  on  the  case  in  assumpsitlnform  it  is  a  com- 

r-tningling  of  the  two  actions,  whiTe  tlie~substahce'"tIiereo f  andThe~ac- 

'count  fTTed  therewith  are  proper  only  in  an  action  oT  assumpsit.     The 

^ffe^ence  between  the  two  actions  is  that  case  Is'  tor  damages  occa^; 

sioned  by  wrongful  action  or  negligence,  while  assumpsit  is  damages 
~^of  failure  to  perform,  or  breaches  of  promises,  express  oflnipired  by~" 
naw^_  In  the  laiter  the  promise  is  the  gist  of  the  action,  and  where  there 
'  is  no  promise  alleged  on  the  part  of  the  defendant  the  declaration  is 
"Tataily  defective,  for  it  presents  no  avermentj3n_wh[ch  the  defendant 
'    can  take  issue  by  the  plea  of  nonassumpsit.    2  Tuck.  Com.  143 ;  Wolf 
^v.  Spence;39  W.  Va.  491,  494,  20  S.  E.  6101  4  Minor's  Institutes,  pt. 
1,  p.  577;  2  Chit.  PI.  279;   1  Rob.  Forms,  527;   Sexton  v.  Holmes,  17 
Va.  566;    Winston's  Ex'rs  v.  Francisco,  2  Va.  189;   Hogg's  Pleading 
and  Forms,  p.  72,  §  84.     It  would  have  been  a  very  easy  matter  for 
the  plaintiff  to  have  made  this  declaration  good  in  assumpsit  by  having 
added  after  the  matter  of  inducement  and  consideration  "that  by  rea- 
son whereof  the  defendant  became  indebted  to  and  liable  to  the  plain- 
tiff in  the  sum  of  $ ,  and,  being  so  indebted,  he,  in  considera- 
tion thereof,  undertook  and  faithfully  promised  to  pay  the  same  to 
the  plaintiff  on  request,  yet  the  defendant,  though  often  requested,  hath 

not  paid  the  same,  but  refuses,  to  the  damage  of  the  plaintiff  $ , 

and  therefore  he  sues,"  or  words  to  the  same  effect  averring  a  promise 
on  the  part  of  the  defendant.  It  does  not  make  any  difference  whether 
the  defendant  ever  made  any  such  promise,  nor  is  it  necessary  to  prove 
it.  All  that  is  necessary  to  prove  is  a  liability  under  the  allegations  of 
the  declaratif  n,  and  the  law  implies  the  promise  if  it  is  properly  al- 
leged. Nor  is  such  promise  rendered  unnecessary  by  section  29,  c.  125, 
Code  1899,  for  such  section  was  not  intended  to  do  away  with  the  com- 
mon-law forms  of  pleading,  or  destroy  the  essential  characteristics  of 
the  different  kinds  of  actions,  as  these  are  highly  necessary  to  promote 
the  ends  of  justice.  The  declaration  being  bad  because  of  the  want 
of  the  necessary  allegation  of  promise  on  the  part  of  the  defendant, 
the  demurrer  thereto  should  have  been  sustained,  and  plaintiff  should 
have  been  required  to  amend  his  declaration  so  that  a  proper  issue  there- 
on could  have  been  joined.  There  is  no  misjoinder  of  action,  for  the 
plaintiff  has  the  right  to  recover  in  an  action  of  assumpsit  for  the  vari- 
ous matters  averred  in  the  declaration  when  he  properly  amends  the 


Ch.  1)  SPECIAL   AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  337 

same  to  conform  to  an  action  of  trespass  on  the  case  in  assumpsit  or 
on  promises.  This  seems  a  technical  matter  on  which  to  reverse  the 
case,  but,  according-  to  long  established  principles  of  law  calculated 
to  promote  justice  and  a  fair  trial  between  litigants,  and  precedent 
firmly  established,  the  court  cannot  do  otherwise. 

The  judgment  is  reversed,  the  verdict  of  the  jury  set  aside,  and  the 
case  is  remanded  to  the  circuit  court,  with  leave  to  the  plaintiff  to 
amend  his  declaration.^^ 


SECTION  3.— DEFENSES 


PLEA  OF  GENERAL  ISSUE  IN  ASSUMPSIT. 

(Martin,  Civil  Procedure,  3S5.    Form  51.) 

In  the  Common  Pleas. 
C.  D.  "1  And  the  said  defendant  by  E.  F.  his  attorney,  comes  and  de- 
V.  ^  fends  the  wrong  and  injury  when,  &c.  and  saith  that  he  did  not 
A.  B.  J  undertake  or  promise  in  manner  and  form  as  the  said  plain- 
tiff hath  above  thereof  complained  against  him,  and  of  this  he  puts 
himself  upon  the  country,  &c. 


PLEA  OF  THE  STATUTE  OF  LIMITATIONS. 

(3  Chitty,  Pleading  [IStli  Am.   Ed.]  pp.  *906,  *907,  *941.) 


In  the  King's  Bench. 


Term,  1  Will.  4. 


C.  D.  ]  And  the  said  defendant  by  E.  F.  his  attorney,  comes  and  de- 
ats.  r  fends  the  wrong  and  injury,  when,  &c.  and  says  that  the  said 
A.  B.  J  plaintiff  ought  not  to  have  or  maintain  his  aforesaid  action 
thereof  against  the  said  defendant  because  he  says,  that  the  several 
supposed  causes  of  action  in  the  said  declaration  mentioned,  (if  any 

87  Smith  V.  Cox,  11  M.  &  W.  475  (1843:  possibly  general'  assumpsit).  Ac- 
cord. Starkey  v.  Cheeseman,  1  Salk.  128  (1700);  Kelly  v.  Owen,  Minor  (Ala.) 
252  (1S24);  Massachusetts  Ins.  Co.  v.  Kellogg,  82  111.  614  (1876:  except  pos- 
sibly on  special  demurrer) ;  Keyes  v.  Binkert,  48  111.  App.  259,  265  (1892). 
Contra. 

When  the  allegations  in  special  assumpsit  show  a  common-law  debt,  a 
fictitious  promise  and  breach  must  be  alleged.  Buckler  v.  Angell,  1  Keble  878 
(1665);  Clark  v.  Reed,  12  Smedes  &  M.  (Miss.)  554  (1849)  semble.  Accord. 
Henderson  v.  Howard,  2  Ala.  342  (1S41)  semble;  Candler  v.  Rossiter,  10 
Wend.  (N.  Y.)  487  (1833)  semble ;  Beardsley  v.  Southmayd,  14  N.  J.  Law,  534, 
543  (1835)  semble.  Contra. 


-X' 


338  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

such  there  were  or  still  are,)  did  not,  nor  did  any  or  either  of  them 
accrue  (to  the  said  plaintiff)  at  any  time  within  six  years  next  before 
the  exhibiting  of  the  bill  of  the  said  plaintiff,  against  the  said  defend- 
ant in  this  behalf,  in  manner  and  form  as  the  said  plaintiff"  hath  above 
thereof  complained  against  him  the  said  defendant.  And  this,  the  said 
defendant  is  ready  to  verify,  wherefore  he  prays  judgment,  if  the  said 
plaintiff  ought  to  have  or  maintain  his  aforesaid  action  thereof  against 
him,  &c. 


WARD  et  al.  v.  ATHENS  MINING  CO 
(Appellate  Court  of  Illinois,  1901.    98  111.  App.  227.) 

HiGBEE^  J.,  delivered  the  opinion  of  the  court.^^ 

This  was  a  suit  in  assumpsit  brought  by  appellants,  constituting 
a  firm  known  as  Ward  Brothers,  who  were  retail  coal  dealers  in 
Peoria,  Illinois,  against  appellee,  a  corporation  engaged  in  mining 
coal  at  Athens,  Illinois.  On  October  4,  1899,  appellants  entered  into 
a  written  contract  with  the  board  of  school  inspectors  of  the  city 
of  Peoria  to  furnish  all  the  coal  required  for  the  various  school  build- 
ings in  said  city,  for  the  year  ending  June  1,  1900.  The  coal  was 
to  be  from  the  Athens  mine.     *     *     * 

Appellants  then  applied  to  Lee  Kincaid,  appellee's  manager,  for 
coal  to  fill  the  contract.  Kincaid  agreed,  on  behalf  of  appellee,  to 
furnish  the  coal  free  on  board  cars  in  Peoria  at  $1.30  per  ton  for 
the  'mine  run  coal.  Frank  H.  Ward,  representing  appellants,  said  it 
would  take  two  car  loads  per  day  to  fill  his  contract  and  Kincaid 
agreed  to  furnish  that  amount.  *  *  *  Under  the  contract  four 
car  loads  of  coal  were  shipped  by  appellee,  two  on  October  10  and 
two  on  October  11,  1899,  and  turned  over  to  appellants.  Of  these 
four  cars,  one  was  sold  and  delivered  by  appellants  to  one  of  their 
customers  named  Luthy  and  the  others  delivered  to  the  parties  haul- 
ing for  the  school  inspectors.  *  *  *  j^  ^^s  at  once  learned  by 
the  school  board  that  part  of  the  coal  shipped  to  Air.  Lynch  ^^  for 
them  had  been  diverted  to  other  uses  and  Mr.  Stevens,  a  member  of 
the  board,  immediately  notified  appellants  that  their  action  was  un- 
satisfactory; that  the  contract  was  canceled  and  that  the  board  would 
not  take  any  more  coal  from  them.  Notice  of  the  condition  of  affairs 
also  came  to  the  knowledge  of  Kincaid  arid  he  thereupon  refused  to 
furnish  appellants  any  more  coal.  Athens  coal  was,  however,  deliv- 
ered to  the  schools  by  other  parties  to  the  amount  of  about  2,250  tons. 
After  the  expiration  of  the  school  year,  appellants  brought  this  suit 
against  the  mining  company,  Lee  Kincaid  and  H.  W.  Lynch,  to  recover 
damages  for  the  failure  of  the  company  to  deliver  the  coal  under  the 
contract  between  them, 

88  Part  of  the  opinion  omitted.  89  Mayor  of  Peoria. 


Ch.  1)  SPECIAL  AMD   GENERAL   (INDEBITATUS)   ASSUMPSIT  339 

The  declaration  contains  two  special  counts  based  upon  the  oral 
contract  between  appellants  and  appellee  for  the  delivery  of  coal  as 
above  set  forth,  its  breach  alleging  also  special  damages  arising  out  of 
the  inability  to  fill  the  contract  of  appellants  with  the  school  inspectors. 
The  declaration  also  contains  the  common  counts.  The  only  pleas 
nled  were  the  general  issue  and  denial  of  joint  liability.  Upon  the 
trial  the  case  was  dismissed  as  to  Kincaid  and  Lynch,  so  that  the 
only  plea  left  in  force  was  that  of  the  general  issue. 

Appellants  claim  that  they  had  a  profit  of  32^  cents  a  ton  under 
their  contracts  with  appellee  and  the  school  inspectors,  and  that  they 
are  entitled  to  that  much  upon  each  ton  of  coal  used  by  the  school 
inspectors  during  the  year.  The  jury  before  which  the  case  was 
tried  found  the  issues  for  the  appellee  and  there  was  a  judgment 
against  appellants  for  costs. 

Appellants  insist  that  under  a  plea  of  the  general  issue  a  rescission 
of  the  contract  for  their  default  cannot  be  proven.  This  position, 
however,  is  not  correct.  The  plea  of  general  issue  puts  upon  the 
plaintiff  the  burden  of  not  only  proving  the  contract  as  alleged,°° 
but  also  the  breach  as  assigned  in  the  declaration.^^  Under  the  gen- 
eral issue  in  assumpsit  the  defendant  may  give  in  evidence  that  the 
contract  was  void  or  avoidable  in  law.  Or  if  good  in  point  of  law, 
that  it  was  performed  by  payment  or  otherwise;  or  if  unperformed, 
that  there  was  some  legal  excuse  for  the  non-performance  of  it  as 
a  release  or  discharge  before  breach  or  non-performance  by  the  plain- 
tifif  of  a  condition  precedent,"-  etc.  *  *  *  jj^  short,  the  question 
in  assumpsit  upon  the  general  issue  is  whether  there  was  a  subsisting 

»o  The  promise  is  in  issue.  Mabaiwe  Bank  v.  Douglass,  31  Conn.  170 
(1862 :  instrument  sued  on  in  altered  form) ;  Ingraham  v.  Luther,  65  111.  446 
(1872:  contract  made  with  a  third  party);  Strong  v.  Liniugton.  8  111.  App. 
436  (1881:  fraud  as  to  contents) ;  Wilson  v.  Black,  6  Blackf.  (Ind.)  509  (1843: 
denies  indorsement -of  note  by  defendant);  Gray  v.  Tunstall,  Fed.  Cas.  No. 
5.730  (1847 :  denies  execution  of  note) ;  Brown  v.  Pt.  Pleasant,  36  W.  Va. 
290.  301.  15  S.  E.  209  (1S92:  agent  of  city  acting  ultra  vires)  semble.  Ac- 
cord. Tillman  v.  Allies,  5  Smedes  &  M.  (Miss.)  373,  43  Am.  Dec.  520  (1845: 
denial  of  indorsement).  Contra.  So  of  contracts  sued  on  by  using  the  com- 
mon counts.  Jones  v.  Blane,  5  Blackf.  (Ind.)  28  (1838) ;  Berringer  v.  Lake 
Superior  Iron  Co.,  41  Mich.  305,  2  N.  W.  18  (1879)  semble;  Cargill  v.  At- 
wood.  18  R.  I.  303.  27  Atl.  214  (1893). 

The  consideration  alleged  is  in  issue.  Lampleigh  v.  Brathwait,  Hob.  105 
(1615);    McCreary  v.  Jaggers,  3  McCord  (S.  C.)  473  (1826)  semble. 

The  existence  of  a  quasi  contract  is  in  issue.  Wilson  v.  Wagar,  26  Mich. 
452  (1873);  Hantz  v.  Sealy.  6  Bin.  (Pa.)  405,  410  (1814);  Harlow  v.  Dyer,  43 
Vt.  357  (1871);    James  v.  Aiken,  47  Vt.  23  (1874). 

91  See  Farr  v.  Payne,  40  Vt.  615  (1868). 

82  The  fulfillment  of  conditions  is  in  issue.  Collins  v.  Montemy,  3  111.  App. 
182  (1878:  days  of  grace  on  note  not  expired);  Hoftmann  v.  Exposition,  55 
111.  App.  290  (1894:  misconduct  by  servant);  Clark  v.  Holway,  101  Me.  391, 
64  Atl.  642  (1900:  failure  to  deliver  timber  agreed  upon)  semble:  Grieb  v. 
Cole,  60  Mich.  397,  27  N.  W.  579,  1  Am.  St.  Rep.  533  (1886:  failure  to  de- 
liver machine  agreed  upon);  Sisson  v.  Willard,  25  Wend.  (N.  Y.)  373  (1841: 
same  as  last);  Scott  v.  Coal  Co.,  89  Pa,  231,  239.  33  Am.  Rep.  753  (1879: 
failure  to  deliver  coal  agreed  upon);  Stitzer  v.  U.  S,,  182  Fed.  513,  105  C.  C. 
A.  51  (1910:    by  statute  six  months  had  to  elapse  after  default  before  suit 


340 


PLEADINGS   IN   CONTRACT   ACTIONS 


(Part  2 


debt  or  cause  of  action  at  the  time  of  commencing-  the  suit.  *  *  * 
Formerly,  matters  in  discharge  of  the  action  must  have  been  pleaded 
specially;  afterward  a  distinction  was  made  between  express  and 
implied  assumpsits.  In  the  former  these  matters  were  still  required 
to  be  pleaded  but  not  in  the  latter.^^  At  length,  about  the  time  of 
Lord  Holt,  they  were  universally  allowed  to  be  given  in  evidence 
under  the  general  issue.  1  Tidd's  Practice,  591,  and  note  N.  -Almost 
_anythmg  which  goes  in  discharge  of  a^roniisejs  admissible^hi^YJiience 
under  the  general  jssue,  so  any  matter  which_shows  _that  the  pjain- 
^tiff  never  had  a  cause  of  action  may  be  given  in. evidenc£_Jiiid£r__the 
plea  of  non-assumpsit,  and  most  matters,  m,  discharge  of  the  action, 
"wHich  show  that  at  the  commencement  of  the  suit  there  Jwas-JiQ_suli:_ 
sisting  cause  of  action,  may  be  taken  advantage  of  under  this  issue. 
Puterbaugh's  PI.  and  Pr.  173,  and  cases  cited.  It  was,  therefore, 
proper  to  permit  evidence  on  the  part  of  appellee  tending  to  show  that 
appellants  had  by  their  action  used  the  coal  for  purposes  not  provided 
for  by  the  contract;  that  they  had  thereby  forfeited  the  school  con- 
tract, rendering  it  impossible  for  appellee  to  fulfill  the  contract  to  fur- 
nish coal  for  the  school  through  appellants,  and  that  the  contract  was, 
therefore,  necessarily  rescinded.     *     *     * 

We  find  no  reason  in  the  record  for  reversing  the  judgment  of  the 
court  below,  and  it  is  accordingly  affirmed.^* 


possible — had  not  elapsed).  Accord.  Runyan  v.  Nichols,  11  Johns.  (N.  Y.) 
547  (1814:    inefficiency  and  neglect  by  a  lawyer).  Contra. 

So  where  the  common  counts  are  used.  Rainey  v.  Long,  9  Ala.  754  (1846: 
debt  not  due) ;  Collins  v.  Montemy,  3  111.  App.  182  (1878 :  same;  good  dis- 
cussion); Gaw  V.  Wolcott,  10  Pa.  43  (1848:  work  poorly  done);  B.  &  O.  Rv. 
V.  Polly,  14  Grat.  (Va.)  447,  452  (1858:    work  not  done). 

9  3  ntz  V.  Freestone,  1  Mod.  210  (1675) ;  Wells  v.  Needham,  2  Lutw.  995 
(1697) ;  Ripley  v.  Fitch,  1  Root  (Conn.)  404  (1792).  See,  also,  1  Chitty,  Plead- 
ing (13th  Am.  Ed.)  *473. 

9  4  Matters  in  excuse  may  be  proved  under  nonassumpsit.  The  cases  are 
numerous.  Illustrations  of  the  various  excuses  are  cited.  Special  assumpsit. 
Bernard  v.  Saul,  1  Str.  498  (1722:  illegality);  Candy  v.  Twichel,  2  Root 
(Conn.)  123  (1794:  duress);  Harrison  v.  Thackaberry,  248  111.  512,  94  N.  E. 
172  (1911:  release  of  surety  by  giving  time  to  principal);  Am.  Ins.  Co.  v. 
/issn.,  81  111.  App.  258  (1899:  violation  of  conditions  of  Insurance  policy) ; 
Fuller  V.  Bartlett,  41  Me.  241  (1856 :  coverture) ;  Keystone  Co.  v.  Forsyth, 
126  Mich.  98,  85  N.  W.  262  (1901:  breach  of  collateral  stipulation);  Robin- 
son v.  Batchelder,  4  N.  H.  40  (1827:  modification  of  contract);  Sill  v.- Rood, 
15  Johns.  (N.  Y.)  230  (1818:  fraud) ;  Wilt  v.  Ogden,  13  Johns.  (N.  Y.)  56  (1816: 
prevention  by  plaintiff)  ;  Edsou  v.  Weston,  7  Cow.  (N.  Y.)  278  (1827 :  goods 
taken  by  paramount  title)  ;  Stansbury  v.  INIarks,  4  Ball.  (Pa.)  130,  1  L.  Ed. 
771  (1793:  infancy);  Craig  v.  Missouri,  4  Pet- 410,  426,  7  L.  Ed.  903  (1830: 
consideration  true,  but  invalid,  because  of  other  facts) ;  University  v.  Bax- 
ter, 42  Vt.  99,  102  (1SG9:  consideration,  though  presumed,  lacking);  Brown 
V.  Pt.  Pleasant,  30  W.  Va.  290,  302,  15  S.  E.  209  (1S92:  nonperformance  of 
implied  conditions  where  consideration  presumed).  Accord.  Rose  v.  Morti- 
mer, 17  111.  475  (1850:  same  as  last  case  above;  by  statute  as  construed); 
Ward  V.  Reed,  134  Mich.  392,  96  N.  W.  4.38  (1903:  fraud;  under  Cir.  Ct. 
Rule  7);  Monson  v.  Beecher,  45  Conn.  299  (1877:  coverture;  under  statute 
requiring  all  affirmative  defenses  to  be  pleaded).  Contra. 

Common  counts.  Darby  v.  Boucher,  1  Salk.  279  (1693:  infancy);  Wilson 
V.  King,  83  111.  232  (1876:    failure  of  consideration;    despite  Rose  v.  Morti- 


Ch.  1)  SPECIAL   AND    GENERAL   (INDEBITATUS)   ASSUMPSIT  341 

YOUNG  V.  RUMMELL. 

(Supreme  Court  of  New  York,  1S42.     2  Hill,  478,  38  Am.  Dec.  594.) 

Error  to  Erie  C.  P.  Rummell  sued  Young  before  a  justice  and 
declared  in  assumpsit.  Plea,  the  general  issue.  The  plaintiff  re- 
covered and  the  defendant  appealed  to  the  common  pleas.  On  the 
trial  in  that  court,  the  defendant  offered  to  prove  that  the  plaintiff 
had  before  brought  a  suit  against  the  defendant  for  the  same  cause 
of  action  and  proceeded  therein  to  a  trial  and  judgment.  The  court 
rejected  the  evidence,  on  the  ground  that  the  former  recovery  should 
have  been  pleaded,  and  was  not  admissible  under  the  general  issue. 
The  defendant  excepted,  and  now  brings  error — judgment  having 
been  rendered  for  the  plaintiff  in  the  court  below. 

Bronson,  J.^^  Although  in  point  of  form,  the  plea  of  non-assumpsit 
puts  nothing  in  issue  but  the  making  of  the  promise,  it  has  been  long 
settled  that  nearly  every  defence  is  admissible  under  that  plea  which 
shows  that  there  was  not  a  subsisting  cause  of  action  at  the  time  the 
suit  was  brought.  Tender  and  set-off,  which  must  be  pleaded  specially, 
are  not  exceptions  to  the  rule,  because  those  defences  admit  a  good 
cause  of  action.  There  are  some  defenses  arising  by  operation  of  law, 
as  a  bankrupt  or  insolvent's  discharge,  and  the  statute  of  limitations, 
which  are  exceptions  to  the  general  rule.  But  there  are  other  de- 
fences of  the  same  character  which  need  not  be  specially  pleaded. 
Clark  V.  Yale,  12  Wend.  470.  When  the  bar  arose  by  the  act  or 
assent  of  the  plaintiff,  there  is,  I  think,  no  case  where  the  matter 
may  not  be  given  in  evidence  under  the  plea  of  non-assumpsit. 
I  am  aware  that  there  is  one  decision  and  some  dicta  in  our  books 
to  the  contrary ;  but  they  stand  opposed  to  the  whole  current  of 
authority.  In  Fowler  v.  Hait,  10  Johns.  Ill,  the  action  was  upon 
contract,  and  evidence  of  a  former  trial  and  judgment  between  the 
same  parties  was  held  inadmissible  under  the  general  issue.  The 
same  thing  was  said  in  Dexter  v.  Hazen,  10  Johns.  246,  and  Brown 
V.  Wilde,  12  Johns.  455 ;  but  in  neither  of  these  cases  was  the  point 
necessarily  involved  in  the  decision.  No  authority  was  cited,  and 
the  only  reason  assigned  for  the  decision  in  Fowler  v.  Hait,  was,  that 
"it  would  produce  surprise  on  the  part  of  the  plaintiff,  and  injustice, 
if  the  defendant  were  allowed  to  set  up,  at  the  trial,  special  matter  in 
bar  of  which  no  notice  had  been  previously  given  to  the  plaintiff." 
That  reason  applies  in  all  its  force  to  every  case  where  the  defence 
admits  a  valid  promise,  and  sets  up  some  new  matter  in  discharge  of 
the  action,  such  as  payment,  release,  foreign  attachment,  accord  and 
satisfaction,  arbitrament,  and  the  like;    and  I  need  not  cite  cases  to 

mer,  17  111.  475  [1856]  above);    INIcCrea  v.  Parsons,  112  Fed.  917,  50  C.  C.  A. 
612  (1902:   illegality);   Limerick  Bank  v.  Adams,  70  Yt.  132,  40  Atl.  106  (1897: 
fraud). 
»5  Part  of  the  opinion  omitted. 


342  PLEADINGS   IX   CONTRACT   ACTIONS  (Part  2 

prove  that  these  defences  are  admissible  under  the  plea  of  non- 
assumpsit.  The  point  has  been  decided,  and  the  objection  upon  which 
the  decision  turned  in  Fowler  v.  Hait,  has  been  disregarded  a  hun- 
dred times.  That  case  was  virtually  overruled  in  Wilt  v.  Ogden,  13 
Johns.  56,  and  Sill  v.  Rood,  15  Johns.  230,  where  the  decision  went 
upon  the  ggneraLjl^^^T-inp  tbnt  "matters  in  discharge  of  the  action, 
w h ich  show  that  at  the  time  of  the^ commeiicemeiit ^ of  the  suit  ^ th e__ 

pTamtlff  had  no  subsisting  cause  '^f  arfinn^  may  -he  taken   arlvnntngp  QJ 

under— the  general-issueJL,  The  court  cited  Chitty,  at  the  very  page 
where,  among  other  things,  he  says  a  former  recovery  for  the  same 
cause  may  be  given  in  evidence  under  non  assumpsit,  without  suggest- 
ing any  doubt  that  such  was  the  correct  rule.     *     *     * 

In  Coles  V.  Carter,  6  Cow.  691,  it  was  held,  that  a  former  recovery 
could  not  be  given  in  evidence  under  the  general  issue;  but  the 
action  was  trespass,  where  all  matters  of  defence  which  admit  the 
original  wrong  must  be  specially  pleaded.     *     *     * 

The  court  below  erred  in  rejecting  the  evidence  which  was  offered, 
and  there  must  be  a  venire  de  novo. 

Judgment  reversed.^ ° 


GOWLAND  V.  WARREN. 

(Court  of  King's  Bench,  1808.     1  Camp.  3G3.) 

Assumpsit  for  use  and  occupation,  money  paid,  &c. — the  gen- 
eral issue. 

The  plaintiff's  case  being  made  out, — 

Taddy  proposed  to  give  in  evidence  the  certificate  obtained  by  the 
defendant  under  a  commission  of  bankruptcy  issued- against  him  since 
the  cause  of  action  accrued.  He  contended  that  although  it  was  usual 
to  plead  bankruptcy,  it  never  had  been  decided  that  this  was  nec- 
essary, and  that  the  words  of  the  statute  which  allow  bankruptcy  to 
be  pleaded  in  a  particular  form  do  not  prevent  the  defendant  from 

96  Warren  v.  Comings,  6  Cusli.  (Mass.)  103  (1S50) ;  Carvill  v.  Garrigues,  5 
Pa.  152  (1847);  Mason  v.  Eldred,  6  Wall.  (U.  S.)  231,  18  L.  Ed.  783 -(1SG7); 
Ins.  Co.  V.  Harris,  97  U.  S.  331,  24  D.  Ed.  959  (1877).  Accord. 

Other  defenses  in  discharge  are  admissible  under  the  general  issue.  Spe- 
cial counts.  Howley  v.  Peacock,  2  Camp.  558  (1811:  release);  Guun  v.  How- 
ell, 35  Ala.  144.  159,  73  Am.  Dec.  484  (18.59:  obligation  taken  on  foreign  at- 
tachment) ;  Osgood  V.  Spencer,  2  Har.  &  G.  (Md.)  133  (1828:  debt  joint  and 
death  of  defendant's  testator);  Drake  v.  Drake,  11  Johns.  (N.  Y.)  531  (1814: 
payment);  Bradley  v.  Field,  3  Wend.  (N.  Y.)  272  (1829:  defendant  arrested 
for  debt  and  discharged  from  custody) ;  Clark  v.  Yale,  12  Wend.  (N.  Y.)  470 
(1834:  payment  by  another  also  liable);  Kennedy  v.  Ferris,  5  Serg.  &  R.  (Pa.) 
394  (1819 :  plaintiff's  right  ceased  by  passing  to  assignees  in  bankruptcy). 
Common  counts.  Bucknall  v.  Swinnock,  1  Mod.  7  (IGuO :  accord  and  satis- 
faction); Stafford  v.  Clark,  2  Bing.  377  (1824:  former  recovery);  Minard  v. 
Lawler,  26  111.  301  (18G1:  debt  garnisheed;  good  discussion)  semble;  Shaw 
V.  Moon,  49  Vt  68  (1876:    payment). 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  343 

giving  the  special  matter  in  evidence  under  the  general  issue  of  non  as- 
sumpsit. 

Lord  Ellenborough.  This  course  has  never  before  been  attempted ; 
and  I  should  be  extremely  sorry  to  sanction  it.  No  one  could  go  to 
trial  with  safety,  if  a  bankruptcy  could  be  thus  suddenly  started  up- 
on him.  The  nature  of  the  defence,  however,  seems  to  me  decisive 
against  permitting  it  to  be  taken  advantage  of  under  the  general  issue. 
BajikniptcyLiiUieilefendant  does  not  shew  that_the^lajnliff.n£i:er_had-- 
any  cause  of  action^,  or  that  his  demand  has  been  cut  down.  The  debt 
still  exists,  and  the  certificate  only  operates  as  a  special  discharge 
trom  It  un^r'TTieJstatute.  The  party,  therefore,  can  avail  himself  of 
this  discharge  only  in  such  manner  as  the  statute  has  provided. 

Verdict  for  the  plaintiff.®' 


BALTIMORE  &  O.  R.  CO.  v.  POLLY,  WOODS  &  CO. 

(Court  of  Appeals  of  Virginia,  1S5S.     14  Grat.  447.) 

MoNCURE,  J.®*  By  articles  of  agreement,  in  writing  but  not  under 
seal,  entered  into  between  the  appellees  Polly,  Woods  &  Co.  and  the 
appellant,  the  Baltimore  and  Ohio  Railroad  Company,  on  the  1st  day 
of  February,  1851,  the  appellees  agreed,  in  consideration  of  the  pay- 
ments therein  mentioned,  to  graduate  and  prepare  for  the  laying  down 
of  the  railway  tracks  thereon,  the  172d  section  of  said  road,  according 
to  the  manner  and  conditions  set  forth  in  the  agreement.  The  work 
was  to  be  completed  on  or  before  the  1st  of  October,  1852;  and  for 
doing  it  certain  prices  were  agreed  to  be  paid  for  the  different  kinds 
of  work,  as  classified  in  the  agreement.  Then  follows  a  clause  in  the 
agreement  in  these  words :  "The  above  payments  shall  be  made  in  the 
following  manner;  that  is  to  say,  during  the  progress  of  the  work. 
and  until  it  is  completed,  there  shall  be  a  monthly  estimate  made  by 
the  aforesaid  engineer  (meaning  the  local  or  resident  engineer  having 
charge  of  the  particular  work  for  the  time  being),  of  the  quantity, 
character  and  value  of  the  work  done  during  the  month,  or  since 
the  last  monthly  estimate,  four-fifths  of  which  value  shall  be  paid 
to  the  said  parties  of  the  first  part,  at  such  places  as  the  chief  engineer 
may  appoint;    and  when  the  said  work  is  completed  and  so  accepted 

»7  Stedman  v.  Martinnant,  12  East.  6G4  (1810);  Sessions  v.  Phinney,  11 
Johns.  (N.  Y.)  162  (1814)  semble.  Accord. 

So  of  the  statute  of  limitations.  Special  counts.  Gould  v.  Johnson,  2  Ld. 
Ravm.  838  (1703);  Jockisch  v.  Hardtke.  50  111.  App.  202  (1893);  Smart  v. 
Baush,  3  J.  J.  Marsh.  (Ky.)  363  (1S30)  semble;  Whitworth  v.  Pelton,  81  Mich. 
98.  45  N.  W.  500  (1890)  semble;  Heath  v.  Page.  48  Pa.  130  (1S65:  possibly 
case).  Common  counts.  Robbins  v.  Harvey,  5  Conn.  335,  343  (1S24);  Stewart 
V.  Durrett,  3  T.  B.  Mon.  (Ky.)  113  (1825). 

Tender  and  set-off  may  properly  be  discussed  under  partial  defenses  and 
cross-demands. 

88  Part  of  the  opinion  omitted. 
Whit.C.L.Pl.— 23 


344  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

by  the  said  chief  engineer,  there  shall  be  a  final  estimate  made  by  the 
(local  or  resident)  engineer  of  the  quantity,  character  and  value  of 
said  work,  agreeably  to  the  terms  of  this  agreement,  when  the  bal- 
ance appearing  to  be  due  to  the  said  parties  of  the  first  part,  shall  be 
paid  to  them,  upon  their  giving  release  under  seal  to  the  said  company, 
from  all  claims  or  demands  whatsoever  growing  in  any  manner  out 
of  this  agreement.     *     *     * 

A  similar  agreement  was  entered  into  between  the  same  parties  on 
the  same  day  in  regard  to  the  182d  section  of  the  said  road,     *     *     * 

In  August,  1853,  the  appellees  instituted  an  action  of  assumpsit 
against  the  appellant.  The  declaration  contained  but  two  counts, 
which  were  the  common  counts  for  work  and  labor,  &c.  and  on  an  ac- 
count stated.  The  bill  of  particulars  filed  with  the  declaration  was 
for  the  work  done  on  the  said  two  sections  of  the  said  road.  After 
various  proceedings  were  had  in  the  action,  a  verdict  was  found  for 
the  appellees  on  the  general  issue,  for  fifteen  thousand  six  hundred 
and  thirty-two  dollars  and  seventy-six  cents,  with  interest  on  fifteen 
thousand  one  hundred  and  sixty-one  dollars  and  fifty-four  cents  from 
the  4th  day  of  December,  1852,  until  paid;  and  judgment  was  rendered 
accordingly  on  the  18th  of  November,  1854.  The  appellant  obtained 
a  supersedeas  to  the  judgment. 

The  first  error  assigned  in  the  petition  for  the  supersedeas,  is 
founded  on  the  first  and  second  bills  of  exception,  taken  by  the  ap- 
pellant to  opinions  of  the  court  rejecting  three  special  pleas  which 
were  oft'ered  on  the  23d  of  June,  1854,  and  again  on  the  10th  of  No- 
vember, 1854. 

In  each  of  these  three  special  pleas,  it  is  averred  that  the  work, 
&c.  mentioned  in  the  first  count  of  the  declaration,  so  far  as  the  same 
had  been  done,  &c.  by  the  appellees,  was  so  done,  &c.  under  and  by 
virtue  of  the  two  written  agreements  of  the  1st  of  February,  1851. 

In  the  first  special  plea  it  is  further  averred,  that  a  final  estimate 
was  made  of  said  work,  &c.  according  to  said  agreements,  amounting 
lo  a  certain  aggregate  sum ;  the  whole  of  which  had  been  paid,  except 
five  thousand  three  hundred  and  fifty  dollars  and  ninety-nine  cents, 
which  the  appellant  offered  to  pay  into  court  on  account  of  what  is 
claimed  by  the  appellee  in  the  action,  upon  receiving  their  release 
under  seal  from  all  claims  or  demands  growing  out  of  said  agreements; 
and  that  the  appellant  is  not  indebted  to  the  appellees  in  a  greater 
amount  than  the  sum  last  mentioned. 

In  the  second  plea  it  is  further  averred,  that  the  appellees  did  not 

complete  the  work  on  or  before  the  day  of  ;    meaning  no 

doubt  the  day  fixed  for  its  completion  in  the  agreements. 

In  the  third  plea  it  is  further  averred,  that  at  the  completion  of 
the  work  and  the  acceptance  thereof  by  the  chief  engineer,  as  in  said 
agreements  provided,  a  final  estimate  under  each  of  them  was  made 
by  the  chief  engineer,  of  which  the  appellees  had  notice;  yet  that 
they  would  not  give  to  the  appellant  a  release  under  their  seals  from 


Ch.  1)  SPECIAL  AND   GENERAL  (INDEBITATUS)   ASSUMPSIT  345 

all  claims  or  demands  growing  out  of  said  agreements,  though  spe- 
cially requested  by  the  appellant  so  to  do. 

Without  expressing  any  opinion  upon  the  question  as  to  the  time 
of  offering  these  pleas,  I  think,  if  they  present  any  defences  at  all, 
they  amount  to  the  general  issue,  and  were  therefore  properly  rejected. 
A  plea  amounts  to  the  general  issue  when  it  traverses  matter  which 
the  plaintiff  avers,  or  must  prove,  to  sustain  his  action;  whether 
such  traverse  be  direct  or  argumentative.  Indebitatus  assumpsit  will 
lie  to  recover  the  value  of  work  done  under  a  special  contract,  if  it 
be  fully  executed  on  the  part  of  the  plaintiff,  and  nothing  remain  to 
be  done  under  it  but  the  payment  of  a  sum  of  money  by  the  defendant. 
The  existence  of  this  state  of  facts  raises  an  implied  promise  to  pay 
the  money.  The  plaintiff  must  prove  the  facts  to  sustain  his  action; 
and  a  plea  traversing  any  of  them  or  averring  facts  inconsistent  there- 
with, must  therefore  amount  to  the  general  issue.  If  the  plaintiff  in 
such  case  should  declare  specially  on  the  contract,  expressly  averring 
the  performance  of  all  conditions  precedent;  a  plea  denying  such 
performance  would  of  course  amount  to  the  general  issue.  The  effect 
is  the  same  under  an  indebitatus  count,  which  is  allowed  in  such  cases 
to  avoid  prolixity  in  pleading,  and  which  implies  an  averment  of  the 
performance  of  all  conditions  precedent,  the  performance  of  which 
is  necessary  to  entitle  the  plaintiff"  to  maintain  his  action.  IMatter 
which  amounts  to  the  general  issue  cannot  be  pleaded  specially.  "But 
there  are  instances  (says  Bayley,  J.,  in  Carr  v.  Hinchliff,  10  Eng.  C.  L. 
R.  408)  in  which  the  defendant  has  the  option  of  giving  his  defence 
in  evidence  under  the  general  issue,  or  of  putting  it  on  the  record.  One 
of  them  is  when  the  plaintiff's  right  of  action  is  confessed  and  avoided 
by  matter  ex  post  facto;  e.  g.  by  a  plea  of  payment,  or  accord  and 
satisfaction.  The  other  is  when  the  plea  does  not  deny  the  declaration, 
but  answers  it  by  matter  of  law ;"  as  for  instance,  gaming.  See  also 
Hayselden  v.  Staff,  31  Eng.  C.  L.  R.  307;  Morgan  &c.  v.  Pebrer,  32 
Eng.  C.  L.  R.  202;  Cousins  v.  Padden,  2  Cromp.  Mees.  &  Ros.  547; 
Jones  V.  Manney,  1  Alees.  &  Welsh.  333 ;  Grounsell  v.  Lamb,  1  Mees. 
&  Welsh.  352;  1  Chit.  PI.  477-479,  52(^528,  714,  738,  and  742. 
The  defence  presented  by  each  of  the  special  pleas  in  this  case  is, 
that  the  action,  though  indebitatus  assumpsit,  is  founded  on  a  special 
contract  subject  to  a  condition  precedent  which  has  not  been  performed 
by  the  plaintiffs. 

But  it  is  contended  that  the  pleas  were  good,  because  they  set  forth 
matter  of  law  proper  for  the  consideration  of  the  court  and  not  of  the 
jury;  and  that  in  every  such  case  the  matter  may  be  specially  pleaded. 
I  do  not  understand  that  any  thing  can  be -pleaded  specially  which 
amounts  to  the  general  issue,  whether  it  be  matter  of  law  or  not.  In- 
fancy, coverture,  usury  and  gaming,  are  matters  of  law  which  may  be 
pleaded  specially  or  given  in  evidence  i:nder  the  general  issue,  at  the 
option  of  the  defendant.  But  they  do  not  amount  to  the  general  issue; 
because  they  do  not   traverse  any  matter  which  the   plaintiff   must 


346  PLEADINGS  IN  CONTRACT  ACTIONS  (Part  2 

prove  to  sustain  his  action.  They  give  color  of  action  to  the  plaintiff, 
as  every  good  special  plea  must,  although  they  show  that  in  law  he 
never  had  a  good  cause  of  action.  In  this  respect  only  they  differ 
from  matters  in  confession  and  avoidance;  which  admit  that  the 
plaintiff  once  had  a  good  cause  of  action,  but  show  that  it  has  since 
been  discharged.  All  matters  of  defence  which  give  color  of  action 
to  the  plaintiff,  may  be  pleaded  specially;  and  all  matters  of  defence 
which  do  not  give  such  color  of  action,  amount  to  the  general  issue, 
and  must  be  given  in  evidence  under  it.     1  Chit.  PI.  526,  530. 

That  a  plea  amounts  to  the  general  issue,  is  a  sufficient  reason  for 
rejecting  it,  especially  when  offered  out  of  time  and  as  an  ad- 
ditional plea  to  that  of  the  general  issue  already  pleaded.    Warner  v. 

Wainsfort,  Hob.  R.  127;  Gardner  v.  Webber,  17  Pick.  (Mass.)  407. 
*     *     * 

The  other  judges  concurred  in  the  opinion  of  Moncure,  J. 
Judgment  reversed.^® 


MAGGS  v.  AMES. 

(Court  of  Common  Pleas.  1828.     4  Bing.  470.) 

Assumpsit.  The  first  count  of  the  declaration  stated  that  Ann  Prick- 
ett  was  indebted  to  the  Howells  before  they  became  bankrupt,  and 
was  arrested  at  their  suit;  that  thereupon,  in  consideration  that  the 
Howells  (before  their  bankruptcy). would  procure  the  discharge  of  Ann 
Prickett,  and  take  her  bill  of  exchange  for  the  amount  of  the  debt,  the 
defendant  undertook  to  pay  the  amount  of  the  bill  of  exchange  in 
case  it  should  be  dishonoured  by  Ann  Prickett.  Averment  of  dishon- 
our by  Ann,  and  nonpayment  by  defendant. 

The  second  count  was  upon  an  undertaking  to  pay  the  debt  for 
which  Ann  Prickett  was  arrested,  in  consideration  of  Howells'  pro- 
curing her  discharge. 

The  defendant  pleaded,  first,  the  general  issue:  the  fourth  plea  was, 
that  the  supposed  promises  and  undertakings  in  the  first  and  second 

9  9  Sea  V.  Taylor,  1  Salk.  394  (1704:  denial  of  breach);  Little  v.  Bolles,  12 
N.  J.  Law,  171  (1S3I :  denial  of  breach) ;  University  of  Vermont  v.  Baxter, 
42  Vt.  99  (1SC9:  denied  consideration);  Merchants'  &  Mechanics'  Bank  v. 
Evans,  9  W.  Va.  373,  381  (1876:    denied  promise). 

The  rule  is  the  same  in  special  assumpsit.  Smith  v.  Hitchcock,  Cro.  Eliz. 
201  (1590:  denial  of  consideration;  probably  wrong  on  facts);  Taylor  v. 
Sea,  Ld.  Raym.  968  (1704:  denial  of  breach);  Cobb  v.  Heron,  180  111.  49, 
54  N.  E.  189  (1899:  denial  of  promise);  Scribner  v.  Bnllitt,  1  Blackf.  (Ind.) 
112  (1821:  denial  of  transfer  to  plaintiff);  Bank  of  Auburn  v.  Weed,  19 
Johns.  (N.  Y.)  300  (1822:  in  fact  a  dilatory  defence;  denial  of  incorpora- 
tion); Sublett  V.  McLin,  10  Humph.  (Tenn.)  181  (1849:  generally)  semble; 
University  of  Vermont  v.  Baxter  42  Vt.  99  (1869:  denial  of  consideration); 
Van  Winkle  v.  Blackford,  28  W.  Va.  670,  681  (1886:  denial  of  promise) 
semble.  Accord.  Dewees  v.  Insurance  Co.,  34  N.  J.  Law,  244,  253  (1870:  de- 
nial of  performance  of  conditions  in  insurance  policy ;  decision  right)  semble; 
Dibble  v.  Duncan,  Fed.  Cas.  No.  3,880  (1841 :  denial  of  promise  argumenta- 
tlvely:    semble  accord).  Contra. 


Ch.  1)  SPECIAL  AND   GENERAL   (INDEBITATUS)   ASSUMPSIT  347 

counts  respectively  mentioned  were  special  promises,  and  each  of  them 
was  a  special  promise  for  the  debt  of  another  person,  to  wit,  the  said 
Ann  Prickett;  and  that  no  agreement  in  respect  of  or  relating  to  the 
said  supposed  causes  of  action  in  the  said  first  and  second  counts  of 
the  said  declaration,  or  either  of  them,  nor  any  memorandum  or  note 
thereof,  wherein  the  consideration  or  considerations  for  the  said  spe- 
cial promises  or  either  of  them  was  or  were  stated  or  shewn,  was  or 
is  in  writing,  or  was  or  is  signed  by  the  said  defendant,  or  by  any 
other  person  by  him  thereunto  lawfully  authorized. 

The  last  plea  was,  that  long  before  and  at  the  time  when  the  said 
Ann  Prickett  was  supposed  in  and  by  the  first  and  second  counts  of 
the  said  declaration  to  have  become  indebted  to  the  said  Thomas  How- 
ell and  John  Howell,  and  from  thence  continually  until  the  making  of 
the  said  supposed  promises  and  undertakings  in  those  counts  respec- 
tively stated,  the  said  Ann  Prickett  was  the  wife  of  one  William  Prick- 
ett, which  said  William  Prickett  at  the  time  of  the  accrual  of  the  said 
supposed  debt  to  the  said  Thomas  Howell  and  John  Howell,  and  dur- 
ing all  the  time  aforesaid,  was  the  husband  of  the  said  Ann  Prickett 
and  in  full  life. 

To  these  pleas  there  was  a  demurrer,  on  the  ground  that  they 
amounted  severally  to  the  general  issue,  and  tended  to  great  and  un- 
necessary prolixity  of  pleading;  and  also  that  the  defendant  had  not 
by  those  pleas  or  either  of  them  traversed  or  denied  or  attempted  to 
put  in  issue,  any  matter  of  fact  alleged  by  the  plaintiff  in  his  first  and 
second  counts,  but  had  in  each  of  the  pleas  respectively  introduced 
and  attempted  to  put  in  issue  matters  of  fact  not  alleged  nor  necessary 
to  be  alleged.    Joinder. 

Park,  J.^  It  may  be  truly  said,  that,  looking  through  all  the  law 
books,  there  is  not  a  greater  variety  of  opinions  upon  any  question 
than  what  pleas  do  or  do  not  amount  to  the  general  issue,  nor  any 
one  upon  which  there  is  a  greater  mass  of  contradictory  decisions. 

I  shall  not  therefore  attempt,  though  I  have  looked  at  many  of  them 
to  go  through  or  endeavour  to  reconcile  them;  I  satisfy  myself  in  gen- 
eral with  saying,  that  though  perhaps  the  general  issue  might  answer 
the  purpose,  it  does  not  therefore  necessarily  follow  that  the  demur- 
rer on  this  ground  must  be  allowed,  nor  that  the  defendant  was  bound 
to  give  this  matter  in  evidence  under  the  general  issue. 

There  are  many  instances  in  which  a  defendant  has  the  option  of 
giving  his  defence  in  evidence,  or  of  putting  it  on  the  record. 

And  though  the  facts  alleged  under  the  defendant's  special  plea 
might  have  been  given  in  evidence  under  the  general  issue,'  the  ques- 
tion is,  whether  the  same  facts  stated  on  the  record  do  or  do  not  con- 
stitute a  good  plea. 

1  Part  of  the  opinion  omitted. 

2Riiggles  V.  Gatton,  50  111.  412  (1869:  held  admissible  under  denial  of  a 
set-oCf)  seuible ;  Meyers  v.  Schemp,  67  111.  469  (1S73:  common  counts); 
Booker  v.  Wolf,  195  111.  365,  370,  63  N.  E,  265  (1902 :    common  counts)  semble* 


348  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

One  species  of  cases  in  which  this  may  be  done  is,  where  the  plain- 
tiff's right  of  action  (which  is  confessed)  is  avoided  by  matter  ex  post 
facto,  as  by  payment ;  which  may  be  given  in  evidence  under  the  gen- 
eral issue,  or  pleaded.  The  other  case  may  be,  where  the  plea  does 
not  deny  the  declaration,  but  answers  it  by  matter  of  law. 

The  plea  in  this  case  consists  not  in  denying  the  plaintiff's  right  of 
action ;  it  is  not  a  denial  of  the  facts  in  the  declaration,  but  it  is  mat- 
ter of  defence  in  law  arising  out  of  the  statute  of  frauds.  I  think  the 
whole  of  this  doctrine,  as  to  what  pleas  shall  amount  to  the  general 
issue,  has  been  fully  and  admirably  explained  by  the  Judges  Bayley, 
Holroyd,  and  Littledale,  in  the  case  of  Carr  v.  Hinchliff,  4  B.  &  C. 
547,  and  which  was  not  quoted  to  us  in  this  case  at  the  bar  on  either 
side. 

In  the  present  case  it  is  true,  that  as  it  appears  to  us  to  be  an  action 
brought  for  the  debt,  default,  or  miscarriage  of  another,  the  proof 
must  at  the  trial  have  been,  that  such  promise  was  in  writing,  but  still 
on  the  face  of  the  declaration,  the  promise  was  good.  But  though,  on 
the  general  issue,  the  plaintiff  must  have  proved  the  writing,  the  de- 
fendant avoids  that  by  shewing  in  pleading  that  it  was  not  in  writing.^ 

The  same  observations  apply  to  the  fifth  plea,  the  coverture  of  Ann 
Prickett.     *     *     * 

Judgment  for  the  defendant* 

Hamilton  v.  Thirston,  93  Md.  213,  48  Atl.  709  (1901);  Morgart  v.  Smouse, 
103  Md.  463,  63  Atl.  1070,  115  Am.  St.  Rep.  367  (1906;  common  counts). 
Accord.  Chicago  Co.  v.  Liddell,  09  111.  639  (1873);  Lawrence  v.  Chase,  54 
Me.  196  (1S66:   unless  declaration  expressly  avers  writing).  Contra. 

3  Myers  v.  Morse,  15  Johns.  (N.  Y.)  425  (1818).  Accord. 

4  Defenses  in  excuse  may  be  specially  pleaded;  Special  counts.  Tillou  v. 
Britton,  9  N.  J.  Law,  120,  131  (1827)  semble;  Dewees  v.  Insurance  Co.,  34 
N.  J.  Law,  244,  253  (1870);  Dibble  v.  Duncan,  Fed.  Cas.  No.  3,880  (1841) 
semble;  Morgantown  Bank  v.  Foster,  35  W.  Va.  357,  364,  13  S.  E.  996  (1891) 
semble.  Accord.  Warner  v.  Crane.  20  111.  148  (1858);  Potter  v.  Stanley, 
1  D.  Chip.  (Vt.)  243  (1814);  Hatch  v.  Hyde,  14  Vt.  25,  39  Am.  Dec.  203 
(1842:  by  thinking  excuse  a  denial);  First  Nat.  Bank  v.  Kimberlands,  16 
W.  Va.  555,  595  (1880)  semble.  Contra.  Common  counts.  Hussey  v.  Jacob, 
1  Ld.  Raym.  87  (1696);  Carr  v.  Hinchliff,  7  D.  &  R.  42  (1825:  leading  case). 
Accord.  Little  v.  Bolles,  12  N.  J.  Law,  171  (1831)  semble;  Stotesbury  v. 
Insurance  Co.,  9  Phila.  210  (1874).  Contra. 

Defenses  in  discharge  may  be  specially  pleaded.  Special  counts.  Hatton 
V.  Morse,  1  Salk.  394  (1703) ;  Id.,  3  Salk.  273  (1703);  Dunham  v.  Ridgel,  2  Stew. 
&  P.  (Ala.)  402  (1832)  semble;  Craig  v.  Whips,  1  Dana  (Ky.)  375  (1833)  semble; 
Frost  V.  Tibbetts,  30  Me.  188  (1849);  Bowman  v.  Noyes,  12  N.  H.  302,  309 
(1841)  semble;  Carvill  v.  Garrigues,  5  Pa.  152  (1847)  semble;  Sublett  v.  Mc- 
Lin,  10  Humph.  (Tenn.)  181  (1849);  First  Nat.  Bank  v.  Kimberlands,  16  W. 
Va.  555,  574  (1880)  semble;  Morgantown  Bank  v.  Foster,  35  W.  Va.  357, 
364,  13  S.  E.  996  (1891)  semble.  Accord.  Hackshaw  v.  Gierke,  5  Mod.  314 
(1696).  Contra.  Common  counts.  Paramore  v.  Johnson,  1  Ld.  Raym.  566 
(1700);  Kearslake  v.  Morgan,  5  T.  R.  513  (1794);  Carr  v.  Hinchliff,  4  B.  & 
C.  547  (1825)  semble;  Gillflllan  v.  Farrington,  12  111.  App.  101,  107  (1882) 
semble;  Wheatly  v.  Phelps,  3  Dana  (Ky.)  302  (1835:  good  discussion); 
Bird  V.  Caritat,  2  Johns.  (N.  Y.)  342,  3  Am.  Dec.  433  (1807)  semble;  Carvill 
V.  Garrigues,  5  Pa.  152  (1847)  semble ;  Morgantown  Bank  v.  Foster,  35  W. 
Va.  357,  364,  13  S.  E.  990  (1891)  semble.  Accord.  Buchnall  v.  Swinuoc,  1 
Mod.  7  (1669).  Contra. 


I 


i 


Ch.2)  DEBT  349 

CHAPTER  II 
DEBT 


SECTION  L— SCOPE  OF  THE  ACTION 


ANONYMOUS. 
(Court  of  Exchequer,  1668.     Hardres,  485.) 

In  an  action  for  £  100.  upon  a  bill  of  exchange  accepted,  the  plain- 
tifl  declared,  that  by  the  custom  of  England,  if  a  merchant  send  a  bill 
of  exchange  to  another  merchant  to  pay  money  to  another  person,  and 
the  bill  be  accepted,  that  he  who  accepts  the  bill,  does  thereby  become 
.chargeable  with  the  sum  therein  contained;  and  that  a  certain  mer- 
chant drew  a  bill  of  exchange  upon  the  defendant,  payable  to  the  plain- 
tiff, which  bill  the  defendant  accepted ;  per  quod  actio  accrevit.  And 
upon  nil  debet  pleaded,  a  verdict  passed  for  the  plamtilT ;  and  now  it 
was  moved  in  arrest  of  judgment  by  Offley:  i  *  *  * 
2.  That  an  action  of  debt  lies  not.     *     *     * 

Secondly,  An  action  of  debt  lies  not  in  this  case,  because  there  is 
no  privity  betwixt  the  plaintiff  and  defendant;  nor  any  contract 
in  deed,  or  in  law ;  and  where  these  fail,  debt  lieth  not.  Vide  19 
Hen.  6.  Dyer,  21  Rol.  1  Part  594.  Where  goods  are  delivered 
to  another  at  the  request  of  a  third  person,  debt  lies  not  upon  a  prom- 
ise to  pay  for  them,  nor  an  indebitatus  assumpsit ;  Otherwise  when 
money  is  received  to  another  man's  use ;  as  when  a  sheriff  levies 
money  upon  an  execution,  tho'  he  make  no  return  of  it,  debt  lies 
against  him ;  because  he  levied  and  received  it  to  the  plaintiff's 
use :    And  the  law  creates  a  contract  there,  but  not  in  our  case. 

Stevens,  pro  quer' ;  *  *  *  And  for  the  second,  it  is  a  rule 
in  law,  that  where  the  common  law,  or  any  particular  custom  creates 
a  duty,  debt  lies  for  it ;  as  in  case  of  a  tailor,  who  by  the  common 
law  may  have  an  action  of  debt,  or  a  quantum  meruit  for  making 
up  a  suit  of  clothes.  So  in  case  of  a  particular  custom,  as  in  11 
Hen.  6.  24.  a  custom  of  a  manor  to  collect  rents,  and  receive  twenty 
shillings  for  the  same,  debt  lies  for  it ;  yet  there  is  no  privity  of 
contract.     So  he  prayed  judgment  pro  quer. 

Chief  Baron.  This  is  a  case  of  weight  and  concern  for  the  fu- 
ture and  deserves  consideration.    Declarations  upon  bills  of  exchange 

1  Parts  of  the  statemeut  and  first  point  of  arguments  omitted. 


350  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

have  often  varied:  Sometimes  declarations  have  been  upon  a  cus- 
tom amongst  merchants  only,  without  laying  an  express  promise : 
Afterwards  they  came  to  declare  upon  an  assumpsit.  And  after  all, 
if  an  action  of  debt  will  lie,  it  will  be  a  short  cut,  and  pare  off  a 
long  recital.  For  if  debt  lies,  a  man  may  declare  upon  a  bill  of  ex- 
change accepted  in  debt,  or  in  an  indebitatus  assumpsit,  for  so  much 
money.  But  for  the  plaintiff's  inferring  the  custom  of  the  realm 
into  his  declaration  here,  I  hold  that  to  be  a  mere  superfluity  and 
redundancy,  which  does  not  vitiate  the  declaration.  And  without 
doubt,  if  the  common  law,  or  the  custom  of  a  place  create  a  duty, 
debt  lies  for  it,  without  more  ado;  as  in  the  case  of  a  toll  due  by 
custom;  20  Hen.  7.  1.  and  so  in  cases  of  a  certain  sum  due  by 
custom  for  pound  breach  to  the  lord  of  a  manor,  or  to  a  goaler,  for 
barr  fees.  Vide  21  Hen.  7.^  But  the  great  question  here  is,  whether 
or  no  a  debt  or  duty  be  hereby  raised :  For  if  it  be  no  more  than  a 
collateral  engagement,  order  or  promise,  debt  lies  not;  as  in  the 
case  that  has  been  cited,  of  goods  delivered  by  A.  to  B.  at  the  request 
of  C.  which  C,  promised  to  pay  for,  if  the  other  does  not ;  for  in  that 
case  a  debt  or  duty  does  not  arise  betwixt  A.  and  C.  but  a  collateral, 
obligation  only.^  In  our  case  the  acceptance  of  the  bill  amounts 
clearly  to  a  promise,  to  pay  the  money ;  but  it  may  be  a  question, 
whether  it  amounts  to  a  debt  or  not?  For  if  so,  then  it  is  assignable 
to  the  king,  or  by  commissioners  of  bankrupts.  And  it  were  worth 
while  to  enquire,  what  the  course  has  been  amongst  merchants;  or 
to  direct  an  issue  for  trial  of  the  custom  amongst  merchants  in  this 
case.  For  although  we  must  take  notice  in  general  of  the  law  of 
merchants ;  yet  all  their  customs  we  cannot  know  but  by  informa- 
tion. And  although  the  verdict  here  finds  it  in  effect,  and  so  might 
seem  to  inform  us;  yet  it  does  not  appear  that  the  custom  was  in 
issue ;  So  that  we  can  have  no  certain  information  of  the  custom 
by  this  verdict.    Et  adjornatur. 

2  So  debt  lies  on  any  quasi  contract  or  other  legal  duty  to  pay  a  "sum 
certain."  Core's  Case,  Dyer,  20a  (1537:  recovery  back  of  consideration  on 
rescission  for  breach  of  contract);  Bonafous  v.  Walker,  2  T.  R.  126  (17S7: 
for  an  escape  after  statute  made  otHcer's  liability  definite);  Knapp  v.  Han- 
ford,  6  Conn.  170  (1S26:  executor's  duty  to  pay  legacy);  Town  of  Geneva 
V.  Cole,  61  111.  397  (1871:  for  taxes);  Norrisv.  School  Dist.  No.  1,  12  Me. 
293,  28  Am.  Dec.  182  (1835 :  benefits  conferred  under  contract  broken  by 
plaintiff);  Van  Deusen  v.  Blum,  IS  Pick.  CNIass.)  229,  29  Am.  Dec.  582  (1836: 
benefits  conferred  mistakenly  thinking  a  contract  existed) ;  Dowell  v.  Boyd, 
3  Smedes  &  M.  (Miss.)  592,  605  (1844 :  master's  duty  to  return  money  con- 
verted by  slave);  Hickman  v.  Searcy,  9  Yerg.  (Tenn.)  47  (1S3G:  duty  of  joint 
debtor  to  contribute) ;  Alsbrook  v.  Hathaway,  3  Sneed  (Tenn.)  454  (1856: 
where  tort  waived). 

3  Sands  v.  Trevilian.  Cro.  Car.  193  (1629) ;  Mires  v.  Sculthorpe,  2  Camp. 
215  (1809);  Elder  v.  Warfield.  7  Har.  &  J.  (Md.)  391  (1826);  Tappan  v.  Camp- 
bell, 9  Yerg.  (Tenn.)  436  (1836).  Accord.  The  rule  is  the  same,  though  the 
contract  be  under  seal.  Thursliy  v.  Plant,  1  Saund.  237,  240a  (1069)  semble; 
Mills  v.  Auriol,  1  H.  Bl.  433  (1790)  semble;  Randall  v.  Pvigby,  4  M.  &  W.  130 
(183S) ;    Fletcher  v.  McFarlane,  12  Mass.  43  (1815)  semble. 


I 


Ch.2)  DEBT  351 

Precedents  were  ordered  to  be  searched ;  and  afterwards  in  Hil- 
ary Term,  20  Car.  2.  it  was  moved  again,  and  precedents  shewn,  that 
by  the  opinion  of  the  chief  justice  debt  lay  not;  and  all  the  clerks  in 
Guild  hall  certified,  that  they  had  no  precedent  in  London  of  debt 
in  such  case. 

Afterwards  in  Hilary  Term,  20  &  21  Car.  2.  the  court  declared 
their  opinion,  that  an  action  of  debt  would  not  lie  upon  a  bill  of 
exchange  accepted,  against  the  acceptor :  But  that  a  special  ac- 
tion upon  the  case  must  be  brought  against  him.  For  that  the 
acceptance  does  not  create  a  duty,  no  more  than  a  promise  made  by 
a  stranger,  to  pay,  &c.  if  the  creditor  will  forbear  his  debt.  And 
he  that  drew  the  bill  continues  debtor,  notwithstanding  the  accept- 
ance ;  which  makes  the  acceptor  liable  to  pay  it.  And  this  course  of 
accepting  bills  being  a  general  custom  amongst  all  traders  both  within 
and  without  the  realm,  and  having  every  where  that  effect,  as  to 
make  the  acceptor  subject  to  pay  the  contents,  the  court  must  take 
notice  of  that  custom ;  but  the  custom  does  not  extend  so  far  as  to 
create  a  debt ;  only  makes  the  acceptor  onerabilis  to  pay  the  money. 
Though  custom  may  give  an  action  of  debt,  as  in  20  Hen.  7.  1.  of 
toll ;  and  so  in  case  of  a  fine  for  a  copyhold. 

Wherefore,  and  because  no  precedent  could  be  produced,  that  an 
action  of  debt  had  been  brought  upon  an  accepted  bill  of  exchange, 
judgment  was  arrested.* 

4  Brown  v.  London,  1  Vent.  152  (1671 :  otber\Yise,  if  acceptor  really  re- 
ceived money  to  nse  of  payee):  Webb  v.  Geddes,  1  Taun.  540  (1S09 :  probably 
wrong  on  facts);  Smith  v.  Segar,  3  Hen.  &  M.  (Va.)  394  (1809:  undertaking 
collateral);  Wilson  v.  Crowdhill,  2  Munf.  (Va.)  302  (1811:  same).  Accord. 
Haliorg  V.  Peyton,  2  Wheat.  385,  4  L.  Ed.  268  (1817)  semble.  Contra. 

Cases  on  whether  debt  lies  by  other  parties  to  bills  and  notes  follow. 

Indorsee  against  acceptor.  That  it  does:  Planters'  Bank  v.  Galloway,  11 
Humph.  (Tenn.)  .342  (1850);  Raborg  v.  Peyton,  2  WTieat  385,  4  L.  FA.  268 
(1817:  leading  case);  Regnault  v.  Hunter,  4  W.  Va.  257,  272  (1870)  semble. 
That  it  does  not :    Cloves  v.  Williams,  5  Scott,  68  (1837). 

Drawer  against  acceptor.  That  it  does :  Priddy  v.  Henbrey,  1  B.  &  C. 
673  (1823);    Pvegnault  v.  Hunter,  4  W.  Va.  257,  271  (1870). 

Payee  against  drawer.  That  it  does:  Stratton  v.  Hill,  3  Price,  253  (1816>; 
Dunlap  V.  Buckingham,  16  111.  109  (1854);  Brown  v.  Hall,  2  A.  K.  Marsh. 
(Ky.)  599  (1820);    Sharpe  v.  Fowlkes,  7  Humph.  (Tenn.)  512  (1847). 

Indorsee  against  drawer.  That  it  does :  Home  v.  Semple,  Fed.  Cas.  No 
6,658  (1843). 

Indorsee  against  his  indorser  (bill).  That  it  does :  Watkins  v.  Wake,  7 
M.  &  W.  488  (1841)  ;  Slacum  v.  Pomery,  6  Cranch,  221,  3  L.  Ed.  205  (1810; 
also  statute).  That  it  does  not:  Whiting  v.  King,  Minor  (Ala.)  122  (1823: 
obligation  collateral). 

Payee  against  maker.  That  it  does:  Bishop  v.  Young,  2  B.  «&  P.  78  (1800)  ; 
Walrad  v.  Petrie,  4  Wend.  (N.  Y.)  575  (1830)  semble;  Gardner  v.  Clark,  5 
N.  C.  283  (1809);  Crawford  v.  Daigh,  2  Va.  Cas.  521  (1826).  That  it  does 
not:  Welsh  v.  Craig,  8  Mod.  373  (1825);  Lindo  v.  Gardner,  1  Cranch,  343,  2 
L.  Ed.  130  (1803). 

Indorsee  against  maker.  That  it  does:  Barclay  v.  Moore,  17  Ala.  634 
(1850);  Taylor  v.  Walpole,  1  Blackf.  (Ind.)  378  (1825);  Phillips  v.  Runnels, 
Morris  (Iowa)  391,  43  Am.  Dec.  109  (1845);  De  Proux  v.  Sargent,  70  Me.  206 
(1879);    Willmarth  v.  Crawford,    10  Wend.   (N.   Y.)  341   (1833);    Anderson  v. 


352  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

FLANAGAN  v.  CAMDEN  MUT.  INS.  CO. 
(Supreme  Court  of  New  Jersey,  1856.    25  N.  J.  Law,  50G.) 

The;  Chief  Justice.^  This  action  is  founded  on  a  policy  of  insur- 
ance ag-ainst  loss  or  damage  by  fire,  made  by  the  defendants  under 
their  corporate  seal,  bearing  date  on  the  twenty-sixth  of  June,  1851. 
The  defendants  are  incorporated  on  the  principle  of  mutual  insur- 
ance. The  plaintiffs  are  mortgagees  of  the  premises  insured,  and  as- 
signees of  the  policy.  The  assignment  is  under  seal,  and  is  approved 
by  the  secretary,  according  to  the  rules  of  the  company.  The  original 
policy  continued  but  for  one  year,  having  expired  on  the  twenty- 
sixth  of  June,  1852.  The  declaration  avers,  that  it  was  thrice  sub- 
sequently renewed,  according  to  the  by-laws  of  the  company ;  that  the 
term  of  the  first  renewal  expired  on  the  twenty-fourth  of  June,  1853, 
and  of  the  second  renewal  on  the  twenty-fourth  of  June,  1854;  that 
it  was  renewed  a  third  time,  on  the  twenty-third  of  January,  1855, 
for  the  term  of  one  year,  and  that  within  that  year,  viz.,  on  the  twenty- 
eighth  day  of  February,  1855,  the  building  insured  was  destroyed  by 
fire;  that  the  premium  upon  each  of  the  renewals  was  paid  by  the 
assignees ;  that,  by  such  assignment  and  continuance  of  the  policy,  the 
plaintiffs  became  members  of  the  association,  and,  as  such,  liable  for 
all  losses  that  might  accrue  by  reason  of  such  insurance;  and  that, 
in  consideration  thereof,  and  of  the  plaintiffs  undertaking  to  do  and 
perform  all  things  in  the  policy  contained  on  the  part  of  James  Stewart 
(the  party  originally  insured)  to  be  done  and  performed,  the  de- 
fendants undertook  and  promised,  and  became  insurers  to  the  plain- 
tiffs for  one  thousand  dollars.  The  plaintiffs  further  aver,  that  at  the 
time  of  the  insurance,  and  at  the  time  of  the  loss  by  fire,  the  plain- 
tiffs were  interested  in  the  premises  to  the  amount  of  one  thousand 
dollars,  being  the  full  amount  of  insurance  thereon,  and   that   they 

Crockett,  6  Yerg.  (Tenn.)  330  (1834);  Kirkman  v.  Hamilton,  6  Pet.  20,  8 
L.  Ed.  305  (1832).  That  it  does  not:  Olive  v.  Napier,  Cooke  (Tenn.)  11  (1811: 
full  discussion;    overruled). 

Bearer  against  maker.  That  it  does:  Carroll  v.  Meeks,  8  Port.  (Ala.) 
226  (1836). 

Indorsee  against  his  indorser  (note).  That  it  does :  Brown  v.  Bussey,  7 
Humph.  (Tenn.)  573  (1847).  That  it  does  not:  Frierson  v.  Reeves,  7  Humph. 
(Tenn.)  3.59  (1846 :   not  noticed  in  case  above). 

Indorsee  against  remote  indorser  (note).  That  it  does :  Onondaga  Bank 
V.  Bates,  3  Hill  (N.  Y.)  53  (1S42);    Loose  v.  Loose,  36  Pa.  5.38  (1860). 

Delit  lies  on  a  simple  contract  when  by  its  performance  a  common-law 
debt  has  arisen.  Duppa  v.  Gerrard,  Comb.  163  (1689);  City  of  Portland  v. 
Railroad  Co.,  66  Me.  485  (1877);  Furman  v.  Parke,  21  N.  J.  Law,  310  (1848); 
Baum  V.  Tonkin.  110  Pa.  569,  1  Atl.  5.35  (1885);  Dillingham  v.  Skein,  Fed. 
Cas.  No.  3,912a  (1832).  The  same  is  true  of  debt  on  a  .specialty.  Sanders 
V.  Marke,  3  Lev.  429  (1702);   Knapp  v.  Hoboken,  38  N.  J.  Law,  371  (1876). 

For  the  early  history  of  Debt,  see  8  Harv.  Law  Rev.  260  et  seq. 

5  Statement  of  facts,  parts  of  the  opinion  of  the  Chief  Justice,  and  the 
concurring  opinion  of  Potts,  J.,  omitted. 


Ch.  2)  DEBT  353 

sustained  damage,  by  reason  of  the  fire,  to  the  amount  of  one  thousand 
dollars. 

To  the  declaration  there  is  a  demurrer. 

The  first  ground  of  demurrer  is,  that  the  action  cannot  be  brought 
in  the  name  of  the  assignee  of  the  policy.*^  *  *  *  Assuming  this 
to  be  the  true  interpretation  of  the  contract,  it  is  clear  that  the  as- 
signees may  maintain  an  action  in  their  own  names.  They  sue,  not 
upon  the  original  policy  under  seal,  but  upon  a  new  parol  agreement 
made  directly  between  the  defendants  and  the  plaintiffs. 

But  it  is  further  objected  that  the  action  is  misconceived,  and  that 
an  action  of  debt  cannot  be  maintained  upon  the  contract  set  out  in 
the  plaintiffs'  declaration.  This  objection  raises  two  questions,  viz. 
first,  whether  an  action  of  debt  will  lie,  in  any  case,  upon  a  policy  of 
insurance  not  under  seal ;  second,  whether  debt  can  be  sustained  upon 
the  policy  which  forms  the  subject  of  the  present  action. 

The  books  very  generally  state  the  rule  to  be,  that  if  the  contract  be 
not  under  seal,  the  remedy  is  assumpsit ;  if  under  seal,  the  remedy  is 
debt  or  covenant.  Ellis  on  Ins,  90;  Angell  on  Ins.  §  355;  Annesley  on 
Ins.  49;  1  Chit.  PI.  (7th  Ed.)  125,  132;  2  Ibid.  179,  note  q;  2  Saund. 
on  PI.  &  Ev.  592.  And  the  precedents  will  be  found  to  be  in  corre- 
spondence with  this  statement  of  the  principle.  2  Chit.  178,  429,  536; 
1  Went.  470;  3  Went.  386,  403,  410;  7  Went.  38.  The  cases  of  prec- 
edents in  debt  upon  policies  are  very  rare,  and  are  principally,  if  not 
exclusively,  confined  to  valued  policies  upon  ships  and  cargo.  I  find  no 
precedent  of  a  declaration  in  debt  upon  a  fire  policy,  and  no  precedent 
of  a  declaration  in  debt  upon  any  policy  not  under  seal. 

The  authorities  cited  in  support  of  the  principle,  that  an  action  of 
debt  will  lie  upon  a  policy  under  seal,  show  that  that  form  of  action 
was  authorized  by  Stat.  6,  Geo.  I,  ch.  18,  under  which  two  companies 
were  incorporated  for  the  assurance  of  ships  and  merchandise  at  sea. 
Marsh,  on  Ins.  596 

Although  the  books  appear  to  confine  the  action  of  debt  exclusively 
to  policies  under  seal,  it  is  not  supposed  that,  in  principle,  that  cir- 
cumstance can  aft'ect  the  form  of  the  remedy.  If  the  nature  of  the 
demand  be  such  as  to  sustain  the  action,  it  is  immaterial  whether  the 
contract  be  by  deed  or  by  parol,  express  or  implied.  Provided  the 
certainty  of  the  sum  appears,  and  the  plaintiff'  is  to  recover  the  sum 
in  numero,  and  not  to  be  repaid  in  damages,  the  action  of  debt  may 
be  sustained  irrespective  of  the  form  of  the  contract.  Buller's  N.  P. 
167;  1  Chit.  PI.  123,  124.  Debt  will  lie  against  a  corporation  for 
the  recovery  of  a  debt  or  sum  certain,  in  all  cases  where  assumpsit 
will  lie.  1  Chit.  PI.  125.  The  real  question  is,  whether  the  claim  of 
the  plaintiff  be  for  a  sum  certain,  in  the  nature  of  a  debt,  or  merely 
for  damages  for  breach  of  contract. 

6  The  Chief  Justice  here  discussed  the  legal  effect  of  the  facts  alleged. 


554  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

Upon  fire  policies,  the  underwriters  are  not  liable  beyond  the  amount 
of  damage  actually  sustained  by  the  plaintiff.  If  the  party  insured  dis- 
poses of  his  interest  in  the  building  prior  to  its  destruction  by  fire, 
he  is  entitled  to  recover  nothing  upon  the  policy,  though  the  loss  be 
total,  because  he  has  sustained  no  damage.  The  underwriters  are 
bound  to  make  satisfaction  to  the  party  insured  for  the  loss  he  has 
sustained.  Their  contract  is  not,  that  they  will  pay  one  thousand 
diollars  if  the  house  is  destroyed  by  fire  within  the  period  of  insur- 
ance, but  that  they  will  indemnify  the  insured  against  all  loss  which 
he  may  sustain  by  reason  of  the  fire.  Lynch  v.  Dalzell,  4  Brown's  P. 
C.  432;  The  Sadler's  Co.  v.  Badcock,  2'Atk.  554;  Carpenter  v.  The 
Prov.  Wash.  Ins.  Co.,  16  Pet.  503,  10  L.  Ed.  1044. 

The  strongest  view  that  can  be  taken  in  favor  of  the  action  of 
debt,  as  an  appropriate  remedy,  is  that  the  contract  is  in  the  nature  of 
a  valued  policy;  that  the  house,  having  been  insured  for  one  thou- 
sand dollars,  and  the  loss  being  total,  the  sum  which  the  plaintiffs  are 
to  recover  is  ascertained  by  the  parties.  But  even  upon  a  valued 
policy,  the  amount  specified  is  only  prima  facie  evidence  of  the  real 
value.  It  is  open  to  the  defendants  to  prove  that,  in  point  of  fact, 
the  articles  insured  were  worth  less  than  the  value  at  which  they  were 
insured.     Marsh.  201. 

In  case  of  a  partial  loss  of  the  property,  or  the  sale  of  part  by 
the  owner,  where  the  insurance  is  in  his  favor,  or  a  partial  payment 
on  a  mortgage,  when  the  insurance  is  effected  by  the  mortgagee,  it  is 
clear  that  the  value  of  the  property  cannot  fix  the  measure  of  damages. 
They  are  in  their  nature  unliquidated,  and  cannot,  therefore,  be  re- 
covered in  action  of  debt. 

In  Long  V.  Long,  1  Hill  (N.  Y.)  597,  it  was  held  that  an  action  of 
debt  will  not  lie  for  the  breach  of  a  sealed  contract  to  pay  a  note, 
and  save  the  plaintiff  harmless  and  indemnified  therefrom,  when  the 
amount  of  the  note  does  not  appear  in  the  contract.  Bronson,  J.,  in 
delivering  the  opinion  of  the  court,  said :  "The  agreement  is  special, 
and)  is  in  effect  a  covenant  to  indemnify  and  save  harmless.  The 
damages  are  unliquidated.  It  is  true  that  debt  will  sometimes  lie 
when  the  certainty  of  the  sum  has  to  be  made  out  by  averment ;  but 
not,  I  think,  on  a  covenant  of  indemnity."  That  case  is  decisive 
against  the  plaintiffs'  right  to  sue  in  debt  in  the  present  instance ;  but 
it  goes  much  further  than  is  necessary  to  sustain  the  defendants'  ob- 
jection. 

Whatever  doubt  may  exist  upon  this  question  as  applied  to  the  or- 
dinary contract  of  insurance,  I  think  there  can  be  none  in  regard  to 
the  policy  on  which  the  present  action  is  founded.  Its  terms  are  pe- 
culiar. After  insuring  one  thousand  dollars  upon  the  building,  the 
contract  proceeds  as  follows :  "But  on  condition  of  loss  or  damage 
by  fire  in  or  upon  said  building,  the  directors  shall  either  compromise 
and  agree  with  the  insured  for  the  amount  of  such  loss  or  damage 


4 


Ch.  2)  DEBT  355. 

sustained,  and  pay  over  to  the  assured  the  amount  of  such  agreement, 
or  otherwise  they  shall,  with  all  convenient  expedition,  proceed  to 
repair,  rebuild,  or  replace  such  loss  or  damage  as  it  was,  or  as  near 
as  may  be  of  the  same  value  as  it  was  before  such  loss  or  damage 
occurred.  This  clearly  is  not  a  covenant  to  pay  liquidated  damages. 
The  covenant  is  express,  that  the  damages  are  either  to  be  ascertained, 
or  the  building  to  be  restored  to  its  former  condition.  The  breach  is, 
that  the  defendants  did  neither.  The  strongest  interpretation  which 
can  be  given  to  the  language  of  the  contract,  laying  out  of  view  its 
alternative  character,  is  that  the  underwriters  covenant  to  indemnify 
the  assured  for  all  damages  or  loss  which  they  may  sustain  by  reason 
or  means  of  fire  happening  to  the  property  insured,  not  exceeding  the 
sum  specified  in  the  policy.  If  this  be  the  true  meaning  of  the  con- 
tract, it  is  a  mere  contract  of  indemnity  against  unliquidated  or  unas- 
certained damages,  for  which  no  action  of  debt  can  be  maintained, 
whether  the  contract  be  by  deed  or  by  parol.  The  pleader  has  at- 
tempted, in  his  declaration,  to  meet  this  aspect  of  the  contract,  for 
he  avers  not  only  that  the  building  was  insured  for  one  thousand  dol- 
lars, and  that  it  was  destroyed,  but  he  avers  that,  by  reason  of  the 
fire,  he  sustained  damage  or  loss  to  the  value  of  one  thousand  dollars. 
That  is  a  distinct  material  averment,  and  must  be  proved  upon  the 
trial.    Ellis  on  Ins.  94. 

The  error  in  the  form  of  the  action  is  not  assigned  specially  as  a 
ground  of  demurrer.  The  objection,  however,  is  not  a  matter  of  form. 
but  of  substance,  and  may  be  raised  upon  general  demurrer,  or  may 
be  taken  advantage  of  in  arrest, of  judgment,  or  upon  writ  of  error. 
1  Chit.  PI.  226. 

The  demurrer  is  allowed.'' 

Potts,  j,     *     *     *     I  concur  in  allowing  the  demurrer. 

Elmer  and  Haines,  JJ.,  concurred. 

7  On  the  question  whether  there  was  a  sufficient  "quid  pro  quo"  here  to 
maintain  the  action,  see:  Harris  v.  Bervoir,  Cro.  Jac.  687  (1825) ;  Bedell  v. 
Janney,  9  111.  193,  209  (1847)  semble;  Ahe  Lincoln  Society  v.  Miller,  23  111. 
App.  341  (1887);  Applegate  v.  Jacoby,  9  Dana  (Ky.)  206  (1839):  Ellicott  v. 
Insurance  Co.,  8  Gill  &  J.  (Md.)  166  (1836);  Franklin  Co.  v.  Massev.  33  Pa. 
221  (1859);    People's  Co.  v.  Spencer,  53  Pa.  353,  91  Am.  Dec.  217  (1807). 

In  accordance  with  the  reasoning  of  the  court  are:  Purslow  v.  Bailey,  2 
Ld.  Ray.  1040  (1705)  semble;  Nelson  v.  Ford,  5  Ohio,  473  (1832);  Weiss  v. 
Iron  Co.,  58  Pa.  295.  301  (ISGS).  Contra  are:  Franklin  Co.  v.  Massey,  33 
Pa.  221  (1859);  People's  Co.  v.  Spencer,  53  Pa.  353,  359,  91  Am.  Dee.  217 
(1867).     See  also  the  cases  cited  under  Crockett  v.  Moore,  post,  p.  358. 

Cases  adopting  the  same  limitation  on  debt  upon  specialties  are:  Haynes 
V.  Lucas,  50  111.  436  (1869) ;  Fox  Co.  v.  Reeves,  68  111.  403  (1873) ;  Sinclair 
V.  Piercy,  5  J.  J.  Marsh.  (Ky.)  63  (1830);  Mitchell  v.  McXabb,  58  Me.  506 
(1870);  Bell  v.  Curtis,  2  N.  J.  Law,  142  (1806);  IMorcan  v.  Guttenburg,  40 
N.  J.  Law,  .394  (1878);  LoUg  v.  Long,  1  Llill  (N.  Y.)  597  (1841).  Contra  are: 
Seretto  v.  Railway,  101  INIe.  140,  142,  147,  63  Atl.  651  (1906:  misapplication 
of  the  rule  accord);    Kirk  v.  Ilartman,  63  Pa.  97,  107  (1870:    same  as  last). 

Dei>t  will  not  lie  on  a  quasi  contract  or  breach  of  legal  duty,  where  the 
recovery  will  not  be  a  sum  certain.  Bonafous  v.  Walker,  2  T.  R.  126  (1787) 
semble;  Dowell  v.  Boyd,  3  Smedes  &  M.  (Miss.)  592,  605  (1844)  semble;. 
Lovell  V.  Bellows,  7  N.  H.  375  (1835). 


356  PLEADINGS   IN  CONTRACT   ACTIONS  (Part  2 

THOMPSON  V.  FRENCH. 

(Supreme  Court  of  Tennessee,  1837.     10  Yerg.  452.) 

TuRLEY,  J.,  delivered  the  opinion  of  the  court. 

This  is  an  action  of  debt  brought  by  the  defendant  in  error  to  re- 
cover compensation  for  services  rendered  the  plaintiff's  intestate  in 
his  life  time,  as  a  general  superintendent  of  his  property  and  busi- 
ness. The  declaration  contains  the  indebitatus  count  for  work  and 
labor  done,  and  a  count  upon  a  quantum  meruit  for  the  same  services. 
The  pleas  are  nil  debet,  and  the  statute  of  limitations.  The  jury 
found  a  verdict  for  the  defendant  in  error,  upon  vi^hich  the  court 
gave  judgment,  and  to  reverse  which,  this  writ  of  error  is  prosecuted. 

The  proof  shows  abundantly,  that  Wm.  P.  French,  the  plaintiff  in 
the  circuit  court,  was  assiduously  engaged  in  attention  to  the  business 
of  Thomas  Hopkins,  the  intestate,  almost  continually  from  the  year 
1821  to  the  year  1836,  but  without  any  special  contract  as  to  the 
amount  or  nature  of  the  compensation  to  be  given  therefor,  and  out 
of  this,  the  first  cause  of  error  is  assigned,  viz.  that  the  action  of  debt 
is  not  the  proper  remedy,  because  1st.  the  damages  being  unliquidated 
and  uncertain,  the  proper  remedy  is  assumpsit  and  not  debt,  and  2d. 
the  action  is  not  maintainable  against  an  administrator  upon  the  simple 
contract  of  his  intestate  by  the  principles  of  the  common  law.^ 

That  the  actions  of  debt  and  indebitatus  assumpsit  are  concurrent 
remedies  in  cases  of  simple  contracts  for  the  payment  of  money,  either 
express  or  implied,  has  been  so  repeatedly  held,  that  it  is  deemed  un- 
necessary to  enter  into  an  examination  of  the  authorities  in  support 
of  the  proposition,  and  we  are  satisfied  with  a  reference  to  the  case 
of  Hickman  v.  Searcy's  Ex'r,  9  Yerg.  47,  where  this  point  is  ex- 
pressly so  adjudicated  by  this  court. 

That  indebitatus  assumpsit  is  a  proper  remedy  to  recover  compen- 
sation for  work  and  labor  done,  cannot  be  denied — indeed,  (if  the 
action  of  debt  be  not  proper,)  it  is  the  only  remedy,  where  the  amount 
-of  compensation  has  not  been  ascertained  by  express  agreement,  for 
no  special  count  in  assumpsit  can  be  framed  upon  a  promise  arising 
by  implication  of  law.  The  special  counts  in  assumpsit  are  given  to 
recover  damages  for  the  non-performance  of  contracts  specially  entered 
into,  and  whether  the  consideration  be  executed  or  executory,  makes 
no  difference.  The  common  counts  are  founded  on  express  or  im- 
plied promises  to  pay  money  in  consideration  of  a  precedent  and  ex- 
isting debt,  and  in  general,  the  consideration  must  have  been  exe- 
cuted, not  executory,  and  the  plaintiff  must  have  been  entitled  to  pay- 
ment in  money.  1  Chitty's  PI.  373.  So  that  the  indebitatus  count  in 
assumpsit  is  no  more  the  proper  remedy  to  recover  unliquidated  dam- 
ages  arising  from  the  non-performance  of  a  special   contract,  than 

8  The  discussion  of  this  point  by  the  court  is  omitted. 


Ch.2)  DEBT  857 

would  be  the  action  of  debt.  But  it  is  said  that  the  action  of  debt 
will  only  lie  for  a  sum  which  is  certain,  or  is  capable  of  being  readily 
reduced  to  a  certainty.  This  as  a  general  principle  is  true,  but  ex- 
tended to  the  length  to  which  it  is  sought  to  be  carried,  would  be 
entirely  subversive  of  the  action  of  debt  as  a  remedy  upon  simple  con- 
tracts, where  the  amount  to  be  paid  has  not  been  ascertained  by  ex- 
press agreement,  or  would  make  the  right  to  use  it  depend  not  upon 
legal  principles,  but  upon  the  nature  and  character  of  the  proof  to 
be  adduced  upon  the  trial,  and  the  ease  or  difficulty  with  which  the 
value  of  services  performed  or  the  goods  delivered,  could  be  ascer- 
tained thereby.  It  is  not  denied  that  the  action  will  lie  for  goods, 
wares  and  merchandise  sold  and  delivered,  and  for  work  and  labor 
done,  although  there  be  no  express  agreement  as  to  the  amount  to 
be  paid.  This  court  cannot  therefore  say  that  the  test  is  the  difficulty 
of  ascertaining  the  value  of  the  goods  sold  and  delivered,  and  the 
work  and  labor  done,  because  they  may  be  of  a  kind  and  character 
about  which  men  may  well  differ  in  opinion. 

It  is  not  to  be  denied,  that  there  is  some  confusion  produced  in 
the  books  relative  to  the  use  of  this  action,  by  the  employment  of  such 
terms  as  "eo  nomine,"  "in  numero,"  and  "unliquidated  damages." 
But  it  is  well  settled,  that  although  a  specific  sum  must  be  demanded 
in  the  declaration,  a  less  may  be  recovered,  and  that  although  in  all 
cases  of  goods,  wares  and  merchandise,  sold  and  delivered,  and  of 
work  and  labor  done,  where  the  law  implies  the  promise,  because  the 
consideration  is  executed,  the  damages  are  of  necessity  unliquidated, 
yet  the  action  is  maintainable.  But  this  confusion  is  produced  either 
by  a  loose  use  of  the  phrases,  or  by  giving  them  an  improper  con- 
struction. By  "eo  nomine,"  and  "in  numero,"  is  only  meant,  that  a 
specific  sum  is  sought  to  be  recovered  which  is  improperly  detained, 
and  that  the  action  does  not  sound  in  damages  as  does  the  action  of 
assumpsit,  thus  drawing  the  proper  line  of  demarcation  between  them, 
as  applicable  to  contracts  of  the  character  under  consideration.  By 
the  words,  "unliquidated  damages,"  is  manifestly  meant  (if  there  be 
any  meaning  in  what  is  most  unquestionably  a  very  loose  use  of 
words,)  such  damages  as  are  sustained  by  the  non-performance  of  an 
executory  contract,  which  cannot  be  considered  as  a  money  demand, 
and  the  amount  of  which  may  depend  upon  such  a  variety  of  con- 
siderations and  circumstances,  as  to  render  it  exceedingly  difficult  to 
be  ascertained.  To  illustrate  it  by  an  example,  suppose  a  contract  for 
the  building  of  a  house,  which  is  not  performed,  or  performed  in  a 
manner  different  from  the  contract,  the  damages  sustained  are  "un- 
liquidated," and  such  as  are  not  readily  reduced  to  a  certainty,  and 
for  which  neither  indebitatus  assumpsit  nor  debt  will  lie. 

The  principle  then  established  by  us  is  this,  "that  in  all  cases  where 
the  consideration  has  been  executed  and  where  there  is  an  express  or 
implied  promise  to  pay  in  money  the  value  thereof,  indebitatus  as- 


358  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

sumpsit  or  debt  is  the  proper  remedy.  But  that  in  all  those  cases, 
where  the  consideration  is  not  executed,  or  if  it  be,  and  the  promise 
to  be  performed  in  consideration  thereof,  is  not  to  pay  money,  but  to 
do  some  other  thing,  that  neither  indebitatus  assumpsit  or  debt  will 
lie,  and  that  the  remedy  is  by  a  special  action  on  the  case.     *     *     * 

Upon  the  whole,  we  think  there  is  no  error  in  the  rendition  of  the 
judgment  in  the  court  below,  and  direct  its  affirmance. 

Judgment  affirmed.* 


\ 


CROCKETT  V.  MOORE. 

(Supreme  Court  of  Tennessee,  1855.     3  Sneed,  145.) 

Caruthers,  J.,  delivered  the  opinion  of  the  Court. ^° 

This  was  an  action  of  debt  brought  upon  an  instrument  executed 
by  the  defendant  to  the  intestate  of  the  plaintiff  in  these  words : 

"Due  James  Hunter,  eight  hundred  dollars,  payable  in  good  bar 
iron,  at  6^  cents  a  pound,  it  being  for  value  received  of  him,  this 
24th  day  of  April,  1841.    Witness  mv  hand  seal. 

"Robert  Crockett.     [Seal.]" 

Verdict  and  judgment  in  favor  of  the  plaintiff,  for  the  balance  un- 
paid of  the  $800,  and  interest.  Motions  for  a  new  trial,  and  in  arrest 
of  judgment,  overruled,  and  appeal  in  error  to  this  Court. 

Several  questions  have  been  made  and  argued  for  a  reversal. 

1.  It  is  contended  that  debt  is  not  the  proper  action,  but  that  it 
should  have  been  covenant.  Much  vexation  and  perplexity  have  ex- 
isted in  the  Courts  here  and  elsewhere  in  relation  to  the  right  form  of 
action  in  cases  of  this  kind.  While  it  is  yet  considered  proper  by  the 
well-informed  and  experienced,  to  have  regard  to'  the  distinctions  in 
the  forms  of  action  in  the  pursuit  of  rights,  yet  much  of  the  techni- 
cality, and  refinement  of  former  times  have  been  wisely  abolished  by 
the  Legislature  and  the  Courts.  The  former,  in  1852,  ch.  152,  enacts, 
in  sec.  4,  "That  all  motions  in  arrest  of  judgment  for  matters  of  form 

8  Jenkins  v.  Richardson,  6  J.  J.  Marsh.  (Ky.)  441,  22  Am.  Dec.  82  (1831); 
Norris  v.  Windsor,  12  Me.  293,  28  Am.  Dec.  182  (1835);  Seretto  v.  Rockland 
S.  T.  &  O.  H.  Ry.,  101  Me.  140,  63  Atl.  651  (1906);  Smith  v.  Lowell,  8  Pick, 
(Mass.)  178  (1829);  Van  Deusen  v.  Blum,  18  Pick.  (Mass.)  229,  29  Am.  Dec. 
582  (1836).  Accord.    Young  v.  Ashburnham,  3  Leon.  161  (15S7).  Contra. 

If  the  sum  is  capable  of  ascertainment,  that  is  sufficient.  Walker  v.  Witter, 
1  Doug.  1  (1778);  Mahaffey  v.  Petty.  1  Ga.  201  (1846);  Belford  v.  Wood- 
ward, 158  111.  122,  136,  41  N.  E.  1097.  29  L.  R.  A.  593  (1895)  semble. 

So  of  debt  on  a  specialty.  Wetumpka  Co.  v.  Hill,  7  Ala.  772  (1845).  But 
contra:    Hale  v.  Hall,  2  Brev.   (S.  C.)  316  (1809). 

But  the  rule  does  not  apply  to  debt  on  quasi  contracts,  according  to: 
District  v.  Railroad,  1  Mackey  (D.  C.)  361,  382  (1882);  Dowell  v.  Boyd,  3 
Smedes  &  M.  (Miss.)  592,  605  (1844). 

That  one  can  recover  quantum  meruit  in  indebitatus  assumpsit  has  seldom 
been  doubted.     Note  Parker  v.  Macomber,  ante,  p.  318. 

3  0  Part  of  the  opinion  omitted. 


Ch.2)  DEBT  359 

in  any  of  said  civil  suits  are  hereby  abolished."  Sec.  7,  "That  here- 
after it  shall  not  be  lawful  for  the  Supreme  Court  of  Tennessee  to 
dismiss  any  suit  for  matters  of  form,  *  *  *  except  when  a  de- 
murrer has  been  filed  in  the  Court  below,  *  *  *  and  no  judg- 
ment shall  be  reversed  for  any  defect  or  imperfection  in  matters  of 
form  which  might  by  law  have  been  amended."  Pamp.  Acts,  219. 
What  is  to  be  regarded  as  matter  of  form,  and  what  of  substance,  in 
pleading,  is  not  very  clearly  defined.  But  we  cannot  doubt,  that  the 
distinction  between  the  actions,  debt  and  covenant,  on  a  contract  like 
this,  under  the  spirit  of  that  act,  should  be  considered  mere  matter  of 
form.  There  was  no  demurrer  filed  in  this  case,  and  consequently  it 
is  too  late  now,  if  the  objection  exists,  to  make  it  available. 

But  we  think  the  action  was  well  brought  according  to  our  decided 
cases.  There  certainly  is  some  appearance  of  conflict  in  the  cases, 
which  it  would  be  useless  now  to  attempt  to  reconcile.  We  under- 
stand the  true  rule  in  relation  to  these  property  contracts,  to  be,  that 
when  the  contract,  upon  its  face,  or  in  its  terms,  furnishes  the  means 
of  ascertaining  the  exact  amount  due  for  specific  articles  or  services, 
debt  will  lie.  Langtry  v.  Walker  &  Polk,  6  Humph.  336;  Marrigan 
V.  Page,  4  Humph.  247;  1  Meigs'  Dig.  p.  413.  If  the  contract  be- 
fore us  be  tested  by  this  rule  there  can  be  no  difficulty.  The  obliga- 
tion is  for  $800,  payable  in  bar  iron  at  6j4  cts.  per  pound.  There  is 
no  uncertainty  here ;  the  quantity  of  iron  is  1,280  pounds,  and  its 
value  is  fixed  by  contract — it  can  neither  be  more  nor  less — there  is 
nothing  to  test  by  proof ;  no  room  for  the  exercise  of  discretion  in  the 
assessment  of  damages.  It  would  be  dififerent  if  the  contract  were 
for  1,280  pounds  of  iron.  Then  the  recovery  would  be  in  damages  to 
be  ascertained  by  a  jury  upon  proof  of  its  value  on  the  day  due.  So, 
if  the  contract  were  for  a  horse,  so  much  wheat,  corn  or  pork,  the 
recovery  would  be  in  damages,  or  as  it  is  sometimes  expressed,  "sound 
in  damages;"  in  such  cases  debt  will  not  lie.  But  in  all  these  cases, 
if  the  price  of  the  article  be  fixed  in  the  contract,  or  if  the  contract  be 
for  a  sum  certain  "to  be  paid,"  or  "which  may  be  paid,"  or  "payable" 
in  any  kind  of  property,  debt  may  be  brought,  because  the  sum  to  be 
recovered  is  certainly  fixed  by  the  parties  to  the  contract,  for  a  failure 
to  pay  the  property,  and  there  is  no  room  for  the  assessment  of  dam- 
ages. If  a  jury  were  to  find  less,  or  more,  the  court  would  set  aside 
the  verdict.  The  numerous  cases  maintaining  this  position  are  re- 
ferred to  and  digested  in  1  Meigs'  Dig.  p.  413.  Upon  first  principles, 
as  laid  down  in  the  elementary  books,  the  proposition  is  equally 
clear.  3  Bl.  Com.  154;  1  Chitty,  100;  2  Ba.  Ab.  279.  The  principle 
is,  that  where  the  amount  to  be  recovered  is  specific  and  fixed,  and 
does  not  depend  upon  any  valuation,  or  assessment  to  fix  it,  debt  may 
be  brought.  But  where  a  contract  for  specific  articles  or  performance 
of  services  does  not  specify  the  value  in  money  of  such  articles  or 
services,  but  the  same  has  to  be  ascertained  by  a  resort  to  extraneous 
Whit.C.L.Pl.— 24 


360  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

evidence  by  the  tribunal  before  which  suit  is  brought,  the  action  can- 
not be  debt.^^     *     *     * 

Finding  no  error  in  the  judgment,  we  afifirm  it. 


RUDDER  V.  PRICE. 

(Court  of  Common  Pleas,  1791.     1  H.  Bl.  547.) 

This  was  an  action  of  debt  on  a  promissory  note  payable  by  instal- 
ments, brought  in  a  former  term  by  the  payee  against  an  attorney  the 
maker,  by  bill  of  privilege.  The  first  count,  on  which  the  question 
before  the  Court  arose,  after  stating  the  debt  to  be  £452.  10s.  which 
the  defendant  owed  to  and  unjustly  detained  from  the  plaintiff,  went 
on  "For  that  whereas  the  said  Stephen  on  the  30th  day  of  March  in 
the  year  of  our  Lord  1790,  to  wit,  at  Westminster  in  the  county  afore- 
said, made  his  certain  note  in  writing,  commonly  called  a  promissory 
note,  his  own  proper  hand  and  name  being  thereto  subscribed,  bearing 
date  the  day  and  year  aforesaid,  and  then  and  there  delivered  the  said 
note  to  the  said  Richard,  by  which  said  note  the  said  Stephen  promised 

11  Eastland  v.  Sparks,  22  Ala.  607  (1853:  indebitatus  assumpsit)  semble ; 
Nelson  v.  Ford,  5  Ohio  473  (1832:  debt  on  simple  contract);  Bollinger  v. 
Thurston,  2  Mill.  Const.  (S.  C.)  447  (1818:  debt  on  specialty);  Kent  v. 
Bowker,  38  Vt.  148  (1865 :  indebitatus  assumpsit).  Accord.  Nesbitt  v.  Ware, 
30  Ala.  68,  74  (1857:   debt  on  specialty).  Contra. 

If  defendant  promises  to  pay  in  money,  or  goods  at  payee's  option,  debt 
lies.     Henry  v.  Gamble,  Minor  (Ala.)  15  (1820 :    debt  on  simple  contract). 

If  defendant  promises  to  pay  in  money,  or  goods  at  defendant's  option, 
debt  lies.  Forsyth  v.  Jervis,  1  Stark.  437  (1816:  indebitatus  assumpsit) ; 
Bradford  v.  Stewart,  Minor  (Ala.)  44  (1821:  debt  on  specialty);  Gregory 
V.  Bewly,  5  Ark.  318  (1844:  debt  on  specialty);  Russell  v.  Branham,  8  Blackf. 
(Ind.)  277  (1S4G:  indebitatus  assumpsit);  Baylies  v..  Fettyplace,  7  Mass. 
325,  329  (1811:  indebitatus  assumpsit)  semble;  Edwards  v.  McKee,  1  Mo. 
123,  13  Am.  Dec.  474  (1821 :  debt  on  simple  contract) ;  Young  v.  Hawkins, 
4  Yerg.  (Tenn.)  171  (1833:  debt  on  specialty);  Wainwright  v.  Straw,  15  Vt. 
215,  40  Am.  Dec.  675  (1843:  indebitatus  assumpsit);  Butcher  v.  Carlile,  12 
Grat.  (Va.)  520  (1855:  debt  on  specialty);  Minnick  v.  Williams,  77  Va.  758 
(1883:  debt  on  specialty).  Accord.  Thomas  Co.  v.  Watson,  85  Me.  300,  27 
Atl.  176  (1893:    indebitatus  assumpsit).  Contra. 

On  a  promise  to  pay  a  definite  sum  in  goods,  debt  lies.  Anonymous,  1 
Anderson,  117,  pi.  165  (1584:  debt  on  specialty);  McKinnie  v.  Lane,  230  111. 
544,  82  N.  E.  878,  120  Am.  St.  Rep.  338  (1907:  indebitatus  assumpsit); 
Barrett  v.  Twombly,  23  Me.  333  (1843:  debt  on  specialty);  Bloomfield  v. 
Hancock,  1  Yerg.  (Tenn.)  101  (1826:  debt  on  simple  contract);  Randall  v. 
Jacques,  Fed.  Cas.  No.  11,553  (1857:  debt  on  simple  contract).  Accord.  Mat- 
tox  V.  Craig,  2  Bibb  (Ky.)  584  (1812:  debt  on  simple  contract);  Cassady 
V.  Laughlin,  3  Blackf.   (Ind.)  134  (1832:    debt  on  specialty).  Contra. 

On  a  promise  to  pay  a  definite  sum  in  some  form  of  currency,  not  legal 
tender,  debt  does  not  lie.  Young  v.  Scott,  5  Ala.  475  (1843:  debt  on  special- 
ty);  Hudspeth  v.  Gray,  5  Ark.  157  (1843:  debt  on  simple  contract);  Sin- 
clair V.  Piercy,  5  J.  J.  Marsh.  (Ky.)  63  (1830:  debt  on  specialty);  Mix  v. 
Nettleton,  29  111.  245  (1862:  debt  on  simple  contract);  Harper  v.  Levy,  1 
Blackf.  (Ind.)  294  (1824 :  debt  on  specialty) ;  Scott  v.  Conover,  6  N.  J.  Law, 
222  (1822:  debt  on  specialty);  Deberry  v.  Darnell,  5  Yerg.  (Tenn.)  451  (1830: 
debt  on  specialty);  Dungan  v.  Henderlite,  21  Grat.  (Va.)  149  (1871:  debt  on 
specialty). 


Ch.2)  DEBT  3G1 

to  pay  to  the  said  Richard  by  the  name  of  Mr.  Richard  Ruddier  or 
order,  fifty-two  pounds  ten  shiUings  for  value  received  by  him  the 
said  Stephen,  the  same  to  be  paid  in  manner  following,  (that  is  to  say,) 
twenty  pounds  on  the  first  day  of  July  then  next,  twenty  pounds  on 
the  first  day  of  October  then  next,  and  twelve  pounds  ten  shillings  on 
the  first  day  of  January  next,  by  reason  whereof  and  by  force  of  the 
statute  in  such  case  madie  and  provided,  the  said  Stephen  became  liable 
to  pay  to  the  said  Richard  the  said  sum  of  money  in  the  said  note 
specified,  according  to  the  tenor  and  effect  of  the  said  note,  whereby 
an  action  hath  accrued  to  the  said  Richard  to  demand  and  have  of  and 
from  the  said  Stephen  the  said  sum  of  money  in  the  saidi  note  men- 
tioned, parcel  of  the  said  sum  of  four  hundred  and  fifty-two  pounds 
ten  shillings  above  demanded,  &c."  There  were  also  the  common 
money  counts  for  the  residue  of  the  sum  of  £452.  10s.  above  de- 
manded. 

Special  demurrer  to  the  first  count,  the  causes  of  which  were, 
"That  in  and  by  the  said  first  count  of  the  said  declaration  it  appears 
that  the  said  sum  of  £52.  10s.  in  the  said  notes  mentioned  is  not  yet 
due  or  payable,  nor  can  the  same  be  sued  for  by  the  said  Richard 
Rudder  till  after  the  first  day  of  January  in  the  year  of  our  Lord  1791, 
and  also  for  that  no  cause  of  action  whatsoever  is  in  the  said  first 
count  of  the  said  declaration  stated  or  alleged  against  the  said  Stephen, 
&c."  To  the  other  counts  the  defendant  pleaded  nil  debet,  on  which 
issue  was  joined. 

Lord  Loughborough.^^  I  take  it,  that  at  the  time  when  Slade's 
Case,  4  Coke,  94,  was  decided,  an  action  of  debt  could  not  be  brought 
on  a  debt  due  by  instalments,  till  all  the  days  of  payment  were  past. 
*  *  *  The  idea  that  an  action  of  debt  could  not  be  brought  till  all 
the  days  of  payment  were  past,  was  founded  on  a  good  ground  of  law, 
that  for  one  contract  there  should  be  but  one  action ;  and  as  a  con- 
tract to  pay  a  certain  sum  on  several  days  of  payment  was  considered 
as  one  contract,  it  followed  that  no  action  could  be  brought  till  all 
the  days  of  payment  were  elapsed.  The  construction  perhaps  has 
been  too  literal,  for  between  a  contract  to  pay  five  sums  of  £20.  on 
five  different  days,  ^^  and  a  contract  to  pay  £100.  by  five  sums  of 
£20.  on  different  days,  the  distinction  is  merely  verbal  and  consists 
in  form :  the  substantial  meaning  is  the  same  in  each.  This  construc- 
tion however  has  long  prevailed.  The  objection  indeed  is  only  to  the 
construction,  not  to  the  rule  of  law  which  is  evidently  a  just  one  if 
the  contract  be  really  entire,  as  to  do  a  series  of  acts  under  a  certain 

12  Part  of  the  opinion  omitted. 

13  Debt  will  lie  for  each  sum  here.  De  Tuyl  v.  McDonald,  8  U.  C.  Q.  M 
171  (1850).  So  if  the  promise  is  single  but  to  pay  five  different  sums  whicl' 
are  really  not  parts  of  a  single  gross  sum.  Foord's  Case,  5  Co.  Sla  (ISO-j) 
semble;  Pilton  v.  Darbv,  Comb.  57  (1G05);  Marsh  v.  Freeman,  3  Lev.  383 
(1691);  Hoy  v.  Hoy,  41  111.  469  (1867).  So  of  debt  on  a  record.  Stanfield 
V.  Fetters,  7  Blackf.  (Ind.)  558  (1845). 


362  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

penalty.  *  *  *  Slade's  Case  appears  to  me  to  be  the  first  where 
general  damages  for  the  non-performance  of  a  contract  were  laid  as 
the  cause  of  action.  But  not  long  after,  the  action  of  assumpsit  was 
brought,  following  the  course  in  which  the  Court  had  supported  the 
action  in  Slade's  Case,  and  declaring  generally  without  stating  any 
special  damage.  The  plaintiff  was  permitted  to  recover  in  assumpsit, 
yet  he  was  obliged  to  demand  the  whole  damages  for  the  whole  con- 
tract: and  it  seems  to  have  been  clearly  understood  by  Lord  Coke 
when  he  was  reporting  Slade's  Case  that  this  was  the  law  with  respect 
to  the  action  of  assumpsit,  for  he  states  in  the  fourth  resolution  in  that 
case  that  a  recovery  in  assumpsit  would  be  a  bar  to  an  action  of  dlebt 
on  the  same  contract;  the  necessary  result  of  which  is,  that  in  an  ac- 
tion of  assumpsit  brought  after  the  first  default  the  plaintiff  was  ob- 
liged to  go  for  damages  for  non-performance  of  the  whole  contract. 
Accordingly  in  Beckwith  v.  Nott,  Cro.  Jac.  504,  the  action  was  brought 
on  a  promise  to  pay  four  pounds  by  five  shillings  a  month,  and  after  a 
default  of  four  months  the  whole  four  pounds  were  given  to  the 
plaintiff  in  damages.  In  reading  the  report  of  that  case,  the  singu- 
larity of  permitting  the  plaintiff  to  recover  the  whole  sum,  when  only 
four  months  were  in  arrear,  is  very  striking;  but  the  Court  held  that 
the  jury  had  a  right  to  give,  if  they  thought  fit,  the  whole  damages 
for  the  non-performance  of  the  contract :  and  the  Reporter  adds  as  a 
note  of  his  own,  "that  where  a  man  brings  such  an  action  for  breach 
of  an  assumpsit  upon  the  first  day,  it  is  best  to  count  of  damages  for 
the  entire  debt,  for  he  cannot  have  a  new  action."  So  in  a  case  in 
9  Car.  I,  Peck  v.  Ambler,  in  the  margin  of  Dyer,  113,  Berkley  held, 
that  if  an  action  of  assumpsit  be  brought  on  the  first  default,  the 
plaintiff  should  recover  damages  for  the  whole  time,  and  should  never 
have  another  action  for  another  default ;  for  the  contract  was  deter- 
mined, et  transit  in  rem  judicatam  by  the  first  action.  This  seems  to 
have  been  understood  to  be  the  law  till  the  case  of  Cooke  v.  Whor- 
wood,  2  Saund.  164,  where  the  Court  determined,  that  in  assumpsit  to 
perform  an  award,  whereby  the  defendant  was  awarded  to  pay  the 
plaintiff  several  sums  of  money  at  several  times,  the  action  might  be 
brought  for  such  sum  only  as  was  due  at  the  time  when  the  action  was 
brought,  and  that  the  plaintiff  should  recover  damages  accordingly, 
and  have  a  new  action  as  the  other  sums  became  due,  toties  quoties. 
Antecedent  to  that  time,  the  distinction  between  an  action  of  assumpsit 
and  an  action  of  debt  with  regard  to  money  payable  by  instalments, 
rested  on  this,  that  the  action  of  debt  would  not  lie  at  all,  till  after  the 
expiration  of  all  the  times  of  payment,  but  the  action  of  assumpsit 
might  be  brought  on  the  first  default ;  but  then  that  one  action  ex- 
hausted the  whole  contract,  and  the  plaintiff  was  to  recover  diamages 
for  the  whole,  as  he  could  not  have  a  fresh  action.     *     *     * 

In  the  older  cases,  it  is  admitted,  that  an  action  of  debt  could  not 
be  brought  for  the  payment  of  money  due  by  installments  till  all  the 
days  were  passed ;    the  meaning  of  this  was  that  no  action  would  lie. 


I 


Ch.  2)  DEBT  3GP. 

The  inconvenience  of  this  rule  put  the  judges  upon  a  method  of  get- 
ting rid  of  the  supposed  difficulty,  by  having  recourse  to  the  action  of 
assumpsit,  which,  where  the  assumpsit  proceeds  in  demand  of  money, 
is  in  truth  and  substance,  and  so  taken  to  be  in  some  of  the  cases,  a 
more  special  action  of  debt ;  for  where  the  demand  is  for  the  payment 
of  a  sum  of  money,  it  is  a  technical  fiction  to  call  the  sum  recovered 
damages;  it  is  the  specific  debt,  and  the  jury  gave  the  specific  thing 
demanded.  *  *  *  j  cannot  indeed  devise  a  substantial  reason  why 
a  promise  to  pay  money  not  performed,  does  not  become  a  debt,  and 
why  it  should  not  be  recoverable,  eo  nomine,  as  a  debt.  But  the  au- 
thorities are  too  strong  to  be  resisted.  Though  the  law  has  been 
altered  with  respect  to  actions  of  assumpsit,  no  alteration  has  taken 
place  as  to  actions  of  debt.  The  note  in  question  is  for  the  payment 
of  a  sum  certain  at  different  times,  must  be  considered  as  a  debt  for  the 
amount  of  that  sum,  and  being  so  considered,  no  action  of  debt  can  be 
maintained  upon  it  till  all  the  days  of  payment  be  past. 

Judgment  for  the  defendant.^'*     • 

Afterwards  the  plaintifl'  had  leave  to  amend. 


DYER  V.  CLEAVELAND. 

(Supreme  Court  of  Vermont,  1846.     18  Vt.'  241.) 

Debt  on  jail  bond.  The  plaintiff  averred  in  his  declaration,  that 
at  the  April  Term,  1842,  of  Rutland  county  court  he  recovered  judg- 
ment against  the  defendant  Cleaveland  for  a  sum  in  damages  and 
costs;  that  afterwards,  on  the  sixth  day  of  October,  1842,  he  took  out 
an  execution,  in  due  form  of  law,  upon  his  judgment,  and  delivered  it 
to  the  sheriff  to  levy,  serve  and  return  according  to  law ;   that  on  the 

14  Blakemore  v.  Wood,  3  Sneed  (Tenn.)  470  (185G).  Accord.  So  of  debt 
on  a  specialty.  Forsytb  v.  Johnson,  G  U.  C.  Q.  B.  (O.  S.)  97  (1840);  Lvall 
V.  City,  8  U.  C.  C.  P.  365  (1858);  Farnham  v.  Hay,  3  Blaekf.  (Ind.)  'l67 
(1833)  semble;  Fontaine  v.  Aresta,  Fed.  Cas,  No.  4,905  (1840);  Peyton  v. 
Harman,  22  Grat.  (Va.)  643  (1872). 

When  all  the  installments  are  due,  delit  will  lie.  Anonymous,  3  Leon. 
119  (1585);  Iniilish  v.  Watkins,  4  Ark.  199  (1842);  Brown  v.  Brown,  10  B. 
Mon.   (Ky.)  247  (1850)  semble. 

Debt  will  lie  for  the  penalty  of  a  bond,  if  the  condition  is  broken  by  the 
nonpayment  of  one  installment.  Coates  v.  Hewit,  1  Wilson,  80  (1744) ;  For- 
syth V.  Johnson,  6  U.  C.  Q.  B.  (O.  S.)  97  (1840)  semble ;  Sparks  v.  Garrigues, 
1  Bin.  (Pa.)  152  (1806);   Fontaine  v.  Aresta,  Fed.  Cas.  No.  4.905  (1840)  semble. 

Indebitatus  assumpsit  will  lie  for  each  installment  separately.  Gray  v. 
Pindar,  2  B.  &  P.  427   (1801). 

There  are  other  instances  where  indeliitatus  assumpsit  will  lie,  though 
debt  will  not.  See  Evelyn  v.  Chichester,  3  Burr.  1717  (1765);  1  Chitty, 
Pleading  (13th  Am.  Ed.)  p.  113.  They  depend  on  the  rights  of  peculuir 
parties  and  are  beyond  our  purview.  Debt  on  simple  contract  may  lie,  where 
indebitatus  assumpsit  will  not.  See  1  Chitty,  Pleading  (13th  Am.  Ed.)  p.  105 
This  depends  on  notions  concerning  the  nature  of  rent  and  the  highei 
character  of  debt  as  a  remedy. 


364  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

fifth  day  of  December,  1842,  the  sheriff,  for  want  of  goods  and  es- 
tate of  Cleaveland,  whereof  to  levy  the  debt,  arrested  his  body  and 
committed  him  to  the  jail  in  the  county  of  Rutland,  within  the  prison, 
until  he  should  pay  and  satisfy  to  the  plaintiff  his  damages  and  costs 
aforesaid,  as  by  the  said  writ  the  sheriff  was  commanded ;  that  Cleave- 
land was  admitted  to  the  liberties  of  the  prison  the  same  day,  and 
thereupon  the  defendants  executed  a  bond,  with  a  condition  specify- 
ing that  Cleaveland  was  a  prisoner  for  the  sum  of  damages  and  costs 
specified  in  the  execution,  and  also  for  the  officer's  fees  of  commitment, 
and  that  he  should  not  depart  from  the  liberties  of  the  prison,  unless 
lawfully  discharged.  And  the  plaintiff  alleged,  that  Cleaveland,  with- 
out right,  departed  from  the  liberties  of  the  prison  on  the  second 
day  of  October,  1843;  and  a  proper  assignment  of  the  jail  bond  to 
the   plaintiff  was  averred. 

The  defendants  pleaded  nil  debet,  and  also  a  plea  in  bankruptcy. 

The  county  court,' — Williams,  Ch.  J.,  presiding, — adjudged  the 
pleas  insufficient;  to  which  decision  the  defendants  excepted. 

The  opinion  of  the  court  was  delivered  by 

Bennett,  J.^^  The  first  question  presented  for  our  consideration 
is,  whether,  in  an  action  of  debt  upon  a  jail  bond,  nil  debet  is  a  good 
plea.  When  the  plaintiff  counts  upon  a  deed  only  as  inducement  to 
the  action,  nil  debet  is  a  good  plea.  In  an  action  of  debt  for  rent, 
due  on  a  deed  of  lease,  the  deed  is  but  inducement.  The  subsequent 
occupation  by  the  defendant  under  the  demise  is  the  gist  of  the  ac- 
tion. Rent  is  considered  as  a  profit,  which  issues  out  of  the  land, 
and  when  sued  for  as  a  debt,  it  is  considered,  that  the  debt  arises 
out  of  the  receipt  of  the  issues  and  profits  by  the  defendant;  and 
not  from  the  deed.  The  declaration,  in  fact,  alleges  the  debt,  as 
arising  from  the  occupation  of  the  premises ;  and  the  lease  is  mere 
matter  of  evidence.  In  such  case  it  is  quite  clear,  that  nil  debet  is 
a  good  plea.  1  Saund.  276,  n.  1.^^  It  is  equally  well  settled,  that, 
wherever  the  action  is  founded  on  a  deed,  the  deed  must  be  declared 
upon ;  and  in  such  case  the  plea  of  nil  debet  is  ill  on  general  de- 
murrer. 2  Wil.  10 ;  1  Chit.  PI.  478 ;  1  Saund.  38,  n.  3 ;  Warren  v. 
Consett,  2  Ld.  Raym.  1500.  If  the  plea  of  nil  debet  wer-e  suffi- 
cient, it  would,  in  practice,  be  quite  inconvenient  and  expensive  for 
the  plaintiff.  It  would  be  necessary  for  him  to  come  prepared  to  prove 
not  only  the  execution  of  the  bond,  but  also  all  those  facts,  which 
are  necessary  to  give  him  a  right  of  action.  The  defendant  would 
also  be  allowed  to  avail  himself  of  every  special  matter  of  defence, 

15  Parts  of  the  statement  of  facts  and  of  the  opinion  omitted. 

16  Wilson    V.   ,    Hardres,   .3.32    (1G63)    semble;    Warren   v.    Consett,   2 

Ld.  Ravm.  1500  (1727)  semble;  Miller  v.  Blow,  68  111.  304,  310  (1873);  Gar- 
vey  V.  Dobyns,  8  Mo.  213  (1S43);  Gates  v.  Wheeler,  2  Hill  (N.  Y.)  232  (1842) 
semble;  Davis  v.  Shoemaker,  1  Rawle  (Pa.)  135  (1829).  Accord.  Tyndal  v. 
Hutchinson,   3   Lev.    170    (1GS4).  Contra. 


I 


Ch.  2)  DEBT  365 

which  he  might  have  proved,  under  the  same  plea,  in  an  action  of 
debt  on  simple  contract. 

The  present  action  is  founded  upon  the  bond ;  though  it  was  nec- 
essary for  the  plaintiff  to  state  in  his  declaration  other  facts,  to  entitle 
himself  to  a  recovery.  The  plaintiff  could  not  declare  for  the  escape 
and  give  the  bond  in  evidence,  but  must  declare  upon  the  bond  it- 
self. Atty.  et  al.  v.  Parish  et.  al.,  4  B.  &  P.  104.  In  Smith  v.  White- 
head, cited  in  Warren  v.  Consett,  2  Ld.  Raym.  1503,  it  was  expressly 
held,  that,  in  an  action  of  debt,  brought  by  the  assignee  of  the  sheriff 
upon  a  bail  bond,  nil  debet  was  not  a  good  plea.  That  case  was  held 
to  be  a  sufficient  authority  to  govern  the  case  of  Warren  v.  Consett.  In 
debt  for  an  escape,  the  escape  is  the  foundation  of  the  action,  and  the 
judgment  is  merely  inducement;  and  for  this  reason  it  has  always 
been  held,  that  in  such  action  nil  debet  is  a  good  plea.^^  The  defend- 
ant's first  plea  must,  then,  be  held  insufficient.     *     *     * 

The  result  is,  the  judgment  of  the  county  court  is  affirmed.^^ 


WALKER  V.  WITTER. 

(Court  of  Kiug's  Bench,  1778.     1  Doug.  1.) 

This  was  an  action  of  debt  brought  in  the  county  of  Middlesex,  on 
a  judgment  in  the  supreme  court  in  Jamaica. — The  first  count  of  the 
declaration  was  in  the  following  words:  "William  Witter,  late  of  the 
parish  of  St.  Mary  le  Bone,  in  the  county  of  Middlesex,  Esq.  was 
summoned  to  answer  Isaac  Walker,  Francis  Newton,  and  John  Col- 
vill,  assignees  of  the  estate  and  eft'ects  of  Samuel  Bean,  a  bankrupt, 
within  the  true  intent  and  meaning  of  the  statutes  made  and  provided, 
and  now  in  force,  concerning  bankrupts,  and  Colin  JMackenzie,  Thomas 
Belt,  and  Alexander  Grant,  assignees  of  the  estate  and  effects  of  Lewis 

i7Waites  v.  Briggs,  2  Salk.  5G5  (lG9o) ;  Gates  v.  Wheeler,  2  Hill  (N.  Y.) 
232  (1S42)  semble.  Accord. 

18  Allen  V.  Smith,  12  N.  J.  Law,  159  (18.31).  Accord.  State  v.  Leeds,  31 
N.  J.  Law,  185  (1SG5:  no  mention  of  last  case)  semble;  Minton  v.  "Woodworth, 
11  Johns.  (N.  Y.)  474  (1814).  Contra. 

Generally  debt  on  simple  contract  will  not  lie  on  a  specialty.  Warren  v. 
Consett,  2  Ld.  Raym.  1.500  (1727) ;  Atty.  Gen.  v.  Parish,  1  New  R.  104  (1804) ; 
Middleditch  v.  Ellis,  2  Ex.  623  (1848);  Hall  v.  Morley,  8  U.  C.  Q.  B.  584 
(1852)  semble;  Farnham  v.  Hay,  3  Blackf.  (Ind.)  167  (1833)  semble;  Brents 
V.  Sthal,  3  Bibb  (Ky.)  482  (1814).  Accord.  Matthews  v.  Redwiue,  23  Miss.  233 
(1851 :    semble  accord).  Contra. 

Debt  on  simple  contract  will  not  lie  on  an  administrator's  bond  for  a  dev- 
astavit. Griffith  V.  Commonwealth,  1  Dana  (Ky.)  270  (1833).  Accord.  War- 
ren V.  Consett,  2  Ld.  Raym.  1.500  (1727)  semble;  Gates  v.  Wheeler,  2  Hill 
(N.  Y.)  2.32  (1842)  semble.  Contra. 

It  was  held  in  Tilson  v.  Company,  4  B.  &  C.  962  (1825),  that  a  common 
count  in  debt  might  be  used  thouiih  suit  be  on  a  specialty.  See,  also,  Maddox 
V.  Brown,  9  Port.  (Ala.)  118  (18.39). 

Debt  on  a  specialty  will  not  lie  on  a  simple  contract  claim.  Smith  v. 
College,  110  Md.  441,  72  Atl.  1107  (1909);  Kidd  v.  Beckley,  64  W.  Va.  SO, 
60   S.   E.    1089   (1908). 


366  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

Cuthbert,  a  bankrupt,  &c.  that  he  render  to  them  £594.  Os.  4d.  of 
lawful  money  of  Great  Britain,  which  he  owes  to,  and  unjustly  detains 
from,  them. — For  that  whereas  the  said  Samuel,  Lewis,  and  also  one 
David  Bean,  since  deceased,  in  the  lifetime  of  the  said  David,  and 
which  said  D'avid,  afterwards,  and  before  the  said  Samuel  and  Lewis 
became  bankrupt,  died,  and  the  said  Samuel  and  Lewis  survived  him ; 
that  is  to  say,  at  Westminster  in  the  county  of  Middlesex,  hereto- 
fore, to  wit,  on  the  last  Tuesday  in  May,  in  the  sixth  year  of  the 
reign  of  our  sovereign  lord  the  now  king,  and  in  the  year  1766,  in  a 
certain  court  of  record  of  our  said  lord  the  king,  called  the  supreme 
court  of  judicature  held  for  our  said  lord  the  king,  at  the  town  of 
St.  Jago  de  la  Vega,  in  the  county  of  Middlesex,  in  and  for  the 
island  of  Jamaica,  and  within  the  jurisdiction  of  the  said  court,  on 
the  said  last  Tuesday  of  May,  in  the  said  sixth  year  of  our  said  lord 
the  now  king,  and  in  the  year  1766,  before  the  Honorable  Thomas 
Beach,  Esq.,  chief  judge  of  the  said  court,  and  his  associates  then  sit- 
ting judges  of  the  same  court,  by  the  consideration  and  judgment  of  the 
same  court,  recovered  against  the  said  William  a  certain  debt  of  £220. 
current  money  of  the  said  island  of  Jamaica,  and  also  £1.  16s.  3d. 
for  their  costs  and  charges  by  them,  about  their  suit,  in  that  behalf  ex- 
pended, to  the  said  Samuel,  Lewis,  and  David  Bean,  in  the  life-time  of 
the  said  David,  by  the  said  court,  of  their  assent  adjudged,  whereof 
the  said  William  is  convicted,  as  by  the  record  and  proceedings  thereof 
remaining  in  the  said  court  at  the  town  of  St.  Jago  de  la  Vega  more 
fully  appears;  which  said  judgment  still  remains  in  that  court  in  full 
force,  unreversed,  unpaid,  and  unsatisfied;  that  is  to  say,  at  West- 
minster in  the  said  county  of  Middlesex;  and  that  neither  the  said 
Samuel,  Lewis,  and  David,  or  either  of  them,  in  the  life-time  of  the 
said  David,  nor  the  said  Samuel  and  Lewis,  or  either  of  them, 
since  his  decease  nor  the  said  Isaac,  Francis,  John,  Colin,  Thomas, 
and  Alexander,  as  assignees  as  aforesaid,  or  either  of  them,  have  yet 
obtained  execution  of  the  aforesaid  judgment,  and  the  said  Isaac, 
Francis,  John,  Colin,  Thomas,  and  Alexander,  in  fact  say,  that  the  debt, 
costs,  and  charges  aforesaid,  so  recovered  as  aforesaid,  amount  to 
a  large  sum  of  money,  to  wit,  to  the  sum  of  £  158.  8s.  2d.  of  like  law- 
ful money  of  Great  Britain,  that  is  to  say,  at  Westminster  aforesaid, 
in  the  said  county  of  Middlesex,  whereby  an  action -hath  accrued  to 
the  said  Isaac,  Francis,  John,  Colin,  Thomas,  and  Alexander,  as  as- 
signees as  aforesaid,  to  demand  and  have  of  and  from  the  said  Wil- 
liam, the  said  sum  of  £158.  8s.  2d.  of  lawful  money  of  Great  Britain, 
parcel  of  the  sum  of  £594.  Os.  4d.  above  demanded." — Then  there  was 
a  second  count  in  the  same  form,  stating  a  like  judgment  of  the  court 
in  Jamaica  for  £608.,  and  £1.  16s.  3d.  costs,  of  Jamaica  currency,  or 
£435.  lis.  7d.  sterling,  being  the  residue  of  the  sum  of  £594.  Os.  4d. 
demanded  in  the  action. — The  defendant,  besides  nil  debet,  pleaded 
also  to  the  first  count,  "That  there  is  not  any  such  record  of  the  re 
covery  of  the  said  debt,  costs,  and  charges,  in  the  said  first  count  of 


I 


Ch.2)  DEBT  367 

the  said  declaration  mentioned  against  him  the  said  William,  in  the 
said  court  of  record  of  our  said  lord  the  king,  called  the  supreme 
court  of  judicature  held  for  our  said  lord  the  king  at  the  said  town  of 
St.  Jago  de  la  Vega,  in  the  said  county  of  Middlesex,  in  and  for 
the  said  island  of  Jamaica,  and  within  the  jurisdiction  of  the 
said  court,  before  the  Honorable  Thomas  Beach,  Esq.  chief  judge  of 
the  said  court,  and  his  associates,  then  sitting  judges  of  the  same  court 
as  the  said  plaintiffs  have,  in  the  said  first  count  of  their  said  declara- 
tion, alleged,  and  this  he  is  ready  to  verify,  wherefore,  &;c." — There  was 
a  similar  plea  to  the  second  count. — Upon  the  nil  debet,  the  plaintiffs 
took  issue  and  the  trial  coming  on  at  the  sittings  in  Westminster  Hall, 
after  Easter  Term,  1778,  a  verdict  was  found  for  the  plaintiffs. — To 
the  pleas  of  nul  tiel  record,  the  plaintiffs  replied,  that  there  was  such 
record,  &c.  (in  the  words  of  the  pleas)  "and  this  they  the  said  plain- 
tiffs are  ready  to  verify  by  the  said  record;  and  thereupon  a  day  is 
given  to  the  said  plaintiffs  on,  &c.  to  come  before  our  said  lord  the 
king  wherever,  &c.  to  produce  the  said  record,  and  the  same  day  is 
given  to  the  said  defendant." 

In  Trinity  Term,  18  Geo.  3,  these  issues  in  law  came  on  to  be  ar- 
gued; the  judgment  on  which  the  action  was  brought  having  been 
brought  into  court,  under  the  seal  of  the  court  of  Jamaica. 

The  Solicitor-General  (W^allace,)  and  Dunning,  for  the  plaintiffs ; 
Graham,  Bower,  and  S.  Heywood,  for  the  defendant. — The  case  stood 
over  till  this  day,  when  it  was  again  argued  by  the  same  counsel. 

For  the  defendant,  several  grounds  were  taken.  It  was  contended, 
that  an  action  of  debt  could  not  be  maintained  on  a  judgment  in  a  for- 
eign court ;  or,  that,  if  debt  would  lie,  yet  it  could  not  be  maintained 
as  on  a  specialty,  but  that  the  consideration  of  the  judgment  ought  to 
be  shewn  in  the  declaration.  That,  if  this  judgment  were  to  be  con- 
sidered as  a  specialty,  the  court  had  no  jurisdiction,  because  actions 
on  judgments  are  local,  and  must  be  tried  in  the  county  where  the 
judgment  is  given. — These  objections,  if  successful,  would  have  en- 
titled the  defendant  to  an  arrest  of  judgment  on  the  verdict  found  for 
the  plaintiffs  on  the  nil  debet. — On  the  issues  joined  on  the  nul  tiel 
record,  it  was  insisted,  that  there  must  be  judgment  for  the  defendant, 
because  the  judgment  in  Jamaica  was  not  a  record,  in  the  proper  le- 
gal sense  of  the  word. 

For  the  plaintiffs,  it  was  said,  that  it  is  an  established  maxim,  that, 
where  indebitatus  assumpsit  will  lie,  debt  will  also  lie;  and  that  this 
court  had  determined,  in  the  case  of  Crawford  v.  Whittal,^^  that 
indebitatus  assumpsit  may  be  maintained  on  a  foreign  judgment.  That 
it  was  also  determined,  in  that  case,  that  the.  judgment  is,  of  itself, 
prima  facie  evidence  of  the  debt,  and,  therefore,  the  plaintiff  is  not 
bound  to  shew  any  other  consideration.  That  in  Sinclair  v.  Fraser, 
which  was  an  appeal  from  the  court  of  session  in  Scotland  to  the  house 

19  Reported  only  in  a  note  to  the  main  case. 


368  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

of  lords,  in  the  case  of  an  action  brought  in  that  court  on  a  judgment 
in  Jamaica,  it  was  laid  down,  as  a  general  principle,  that  such  a  judg- 
ment is  prima  facie  evidence  of  a  debt,  though  it  is  competent  to  the 
defendant  to  impeach  the  justice  of  the  judgment,  by  shewing  it  to 
have  been  irregularly,  or  unduly,  obtained.  That  the  plea  of  nul  tiel 
record  was  absurd,  and  that  the  judgment  ought  to  be  the  same  as  if 
there  had  been  no  such  plea. 

Upon  this,  and  the  former  occasion  were  cited  (among  other  au- 
thorities) besides  Crawford  v.  Whittal,  and  Sinclair  v.  Fraser,  the  cases 
of  Olive  V.  Gwin,  Hard.  118,  Otway  v.  Ramsey,  2  Str.  1090,  and 
Campbell  v.  Hall,  Cowper,  204. 

Lord  Mansfield,  now  and  on  the  former  occasion,  said,  that  the 
plea  of  nul  tiel  record  was  improper.^"  Though  the  plaintiffs  had 
called  the  judgment,  a  record,  yet  by  the  additional  words  in  the  dec- 
laration, it  was  clear  they  did  not  mean  that  sort  of  record  to  which 
implicit  faith  is  given  by  the  courts  of  Westminster  Hall.  They  had 
not  misled  the  court,  nor  the  defendant,  for  they  spoke  of  it  as  a  rec- 
ord of  a  court  in  Jamaica.  The  question  was  brought  to  a  narrow 
point,  for  it  was  admitted,  on  the  part  of  the  defendant,  that  indebita- 
tus assumpsit  would  have  lain,  and  on  the  part  of  the  plaintiffs,  that 
the  judgment  was  only  prima  facie  evidence  of  the  debt.  That  being 
so,  the  judgment  was  not  a  specialty,  but  the  debt  only  a  simple-con- 
tract debt ;  for  assumpsit  will  not  lie  on  a  specialty.  The  difficulty  in 
the  case  had  arisen  from  not  fixing  accurately  what  a  court  of  rec- 
ord is  in  the  eye  of  the  law.  That  description  is  confined  properly  to 
certain  courts  in  England,  and  their  judgments  cannot  be  controverted. 
Foreign  courts,  and  courts  in  England  not  of  record,  have  not  that 
privilege,  nor  the  courts  in  Wales,  &c.  but  the  doctrine  in  the  case 
of  Sinclair  v.  Eraser,  was  unquestionable.  Foreign  judgments  are 
a  ground  of  action  every  where,  but  they  are  examinable.  He  rec- 
ollected a  case  of  a  decree  on  the  chancery  side  in  one  of  the  courts 
of  great  sessions  in  Wales,  from  which  there  was  an  appeal  to  the 
house  of  lords,  and  the  decree  affirmed  there ;  afterwards,  a  bill  was 
filed  in  the  court  of  chancery,  on  the  foundation  of  the  decree  so  af- 
firmed, and  Lord  Hardwicke  thought  himself  entitled  to  examine  into 
the  justice  of  the  decision  of  the  house  of  lords,  because  the  original 
decree  was  in  the  court  of  Wales,  whose  decisions  were  clearly  liable 
to  be  examined.  (He  also  mentioned  a  case  on  the  mortmain  acts  to 
the  same  purpose.) — Debt  may  be  brought  for  a  sum  capable  of  being 
ascertained,  though  not  ascertained  at  the  time  of  the  action  brought. 
— (It  had  been  said  at  the  bar,  that  the  value  of  Jamaica  currency  was 
fluctuating  and  uncertain.) — It  is  not  necessary  that  the  plaintiff  in 
debt,  should  recover  the  exact  sum  demanded. 

WiLLES^  Justice,  of  the  same  opinion. 

2  0  Dupleix  V.  De  Roven,  2  Vern.  540  (1705)  semble;  Otway  v.  Ramsey,  2 
Str.  1090  (1736).  Accord.  Hazzard  v.  Nottingham,  Tappan  (Ohio)  146  (1S17) 
semble.  Contra. 


Ch.  2)  DEBT  3G9 

Ash  HURST,  Justice,  of  the  same  opinion. — He  said,  that,  in  indebita- 
tus assumpsit  on  a  foreign  judgment,  the  judgment  is  shewn  as  a  con- 
sideration ;  and,  wherever  indebitatus  assumpsit  can  be  maintained, 
debt  will  lie. 

BuLLER,  Justice,  of  the  same  opinion. — He  observed,  that  all  the  old 
cases  shew,  that,  whenever  indebitatus  assumpsit  is  maintainable,  debt 
also  is.  Till  Slade's  case,  a  notion  prevailed,  that,  on  a  simple  contract 
for  a. sum  certain,  the  action  must  be  debt:  but  it  was  held  in  that 
case,  that  the  plaintiff  had  his  election  either  to  bring  assumpsit,  or 
debt.  By  the  arguments  in  Vaughan,  it  seems  the  doctrine  of  Slade's 
case  was  not  approved  of  at  first,  and  from  the  manner  in  which  the 
statute  of  3  Jac.  I,  c.  8,  is  penned,  it  is  probable  the  action  of  assumpsit 
was  not  then  much  in  use  in  such  cases.  Afterwards,  however,  it 
became  very  general,  and  that  is  the  reason  why  we  meet  with  no  in- 
stances in  the  books,  of  debt  brought  on  foreign  judgments.  As  to  the 
point  that  the  judgment  is  not  a  record,  and  that  the  defendant  must 
have  judgment  on  the  pleas  of  nul  tiel  record,  there  is  no  foundation 
for  it,  because  it  is  stated  to  be  a  judgment  of  a  court  in  Jamaica.  As 
such  it  is  to  be  tried  by  the  country,  (as  it  might  have  been  in  this  case, 
on  the  nil  debet,)  and  not  by  the  court.  The  prout  patet  per  recordum 
in  the  declaration,  is  absurd  and  may  be  rejected,  and  the  plea  of  nul 
tiel  record  is  a  mere  nullity.  The  plaintiffs  have  done  right  to  state  the 
judgment  in  the  manner  they  liave  done,  because  that  is  matter  of  de- 
scription. 

Judgment  for  the  plaintiffs.^^ 

21  So  assumpsit  will  lie  on  a  foreign  Judgment.  Harris  v.  Saunders,  4  B. 
&  C.  411  (1S25);  Russell  v.  Smyth,  9  M.  &  W.  SIO  (1S42);  McFarlaue  v.  Der- 
bishire,  8  U.  C.  Q.  B.  12  (1S51);  Buttrick  v.  Alleu,  8  Mass.  273,  5  Am.  Dec. 
105  (ISll :    apparently  indebitatus  assumpsit). 

Debt  on  record  will  lie  on  a  domestic  judgment.  Anonymous,  1  Salk.  209 
(1713);  Denison  v.  Williams,  4  Conn.  402  (1822):  Greathouse  v.  Smith,  3 
Scam.  (111.)  541  (1842);  Rice  v.  Barre  Turnpike  Corp.,  4  Pick.  (Mass.)  130 
(1826);  Lee  v.  Gardiner,  26  Miss.  521,  537  (1849);  Stokes  v.  Sanborn,  45  N. 
H.  274  (1864);  Bank  of  Columbia  v.  Newcomb,  6  Johns.  (N.  Y.)  98  (1810) 
semble;  Headley  v.  Roby,  6  Ohio,  522  (1834);  Parnell  v.  James,  6  Rich.  (S 
C.)  370  (1853) ;    Gardner  v.  Henry,  5  Cold.  (Tenn.)  458  (1868). 

Assumpsit  will  not  lie  on  a  domestic  judgment.  Vail  v.  Mumford,  1  Root 
(Conn.)  142  (1789);  Wass  v.  Buckuam,  40  Me.  289  (1855);  James  v.  Henrv, 
16  Johns.  (N.  Y.)  233  (1819);  Bain  v.  Hunt,  10  N.  C.  572  (1825);  Woods  v. 
Pettis,  4  Vt.  556  (1832).  Accord.  De  Haven  v.  Bartholomew,  57  Pa.  120  (1868). 
Contra.  But  if  the  judgment  is  not  a  record,  then  debt  on  simple  contract 
or  assumpsit  will  lie.  Williams  v.  Jones,  13  M.  &  W.  628  (1845)  semble; 
Cole  V.  Driskell,  1  Blackf.  (Ind.)  16  (1818);  Wheaton  v.  Fellows,  23  Wend. 
(N.  Y.)  375  (1840);  Green  v.  Fry,  Fed.  Cas.  No.  5,758  (1803).  See,  also,  Mer- 
vin  V.  Kumbel,  23  Wend.  (N.  Y.)  293  (1840). 

Debt  on  record  will  lie  on  the  judgment  of  a  sister  state.  Carter  v.  Crews, 
2  Port.  (Ala.)  81  (1835);  Hoaglaud  v.  Rogers,  3  Blackf.  (Ind.) '501  (1834); 
Hazzard  v.  Nottingham,  Tappan  (Ohio)  146  (1817);  Mclntire  v.  Cariith,  1 
Tread.  Const.  (S.  C.)  457  (1814);  Hunt  v.  Lyle,  7  Yerg.  (Tenn.)  412  (1834) 
semble. 

Debt  on  simple  contract  and  assumpsit  will  not  lie  on  the  judgment  of 
a  sister  state.     Morehead  v.  Grisham,  13  Ark.  431  (1853);    Knickerbocker  Co. 


370  PLEADINGS   IN   CONTKACT   ACTIONS  (Part  2 

SECTION  2.— NECESSARY  ALLEGATIONS 


FORM  OF  COMMON  COUNT  IN  DEBT. 

(2  Chitty,  Pleading  [13tli  Am.  Ed.]  pp.  *384,  *386,  *387.) 

Ellenborcugh 

next  after in  Mich.  Term,  1  Will.  4. 


Middlesex  (to  wit)  A.  B.  the  plaintiff  in  this  suit,  complains  of  C.  D. 
the  defendant  in  this  suit,  being  in  the  custody  of  the  Marshal  of  the 
Marshalsea  of  our  lord  the  now  king-,  before  the  king  himself,  of  a 

plea  that  he  render  to  the  said  A.  B.  the  sum  of  £ of  lawful 

money  of  Great  Britain,  which  he  owes  to  and  unjustly  detains  from 
him.  For  that  whereas,  the  said  defendant,  afterwards,  to  wit,  on, 
&c.  aforesaid,  at  &c.  aforesaid,  had  and  received  a  certain  sum  of 

money,  to  wit,  the  sum  of  £ of  lawful  money,  to  and  for  the 

use  of  the  said  plaintiff,  and  to  be  paid  by  the  said  defendant  to  the 
said  plaintiff  when  he  the  said  defendant  should  be  thereunto  after- 
wards requested,  whereby  and  by  reason  of  the  said  last-mentioned 
sum  of  money  being  and!  remaining  wholly  unpaid,  an  action  hath  ac- 
crued to  the  said  plaintiff  to  demand  and  have  of  and  from  the  said 

defendant  the  said  last-mentioned  sum  of    £ .     Yet  the  said 

defendant  (although  often  requested  so  to  do,)  hath  not  as  yet  paid  the 

said  sum  of  £ above  demanded,  or  any  part  thereof  to  the  said 

plaintiff.    But  he  to  do  this  hitherto  hath  wholly  refused,  and  still  doth 

refuse,  to  the  damage  of  the  said  plaintiff  of  £ ,  and  therefore 

he  brings  his  suit,  &c. 


FORM  OF  COUNT  ON  A  BOND. 

(2  Chitty,   Pleading  [13tli  Am.  Ed.]  pp.   *3S4,  *436.) 

Ellenborough. 

next in  l\Tich.  Term,  1  Will'.  4. 


Middlesex  (to  wit)  A.  B.  the  plaintiff  in  this  suit,  complains  of  C. 
D.  the  defendant  in  this  suit,  being  in  the  custody  of  the  Marshal  of 
the  Marshalsea  of  our  lord  the  now  king,  before  the  king  himself,  of 
a  plea  that  he  render  to  the  said  A.  B.  the  sum  of  £ of  lawful 

V.  Barker,  55  111.  2-11  (1S70);  Garland  v.  Tucker,  1  Bibb  (Ky.)  861  (1809): 
Mclvim  V.  Odom,  12  Me.  94,  108  (1835);  Lnnnlng  v.  Sbute,  5  N.  J.  Law,  778 
(1820);  Andrews  v.  Montgomery,  19  Johns.  (N.  T.)  162,  10  Am.  Dee.  213 
(1821);  Mills  v.  Duryee,  7  Crauch,  481,  3  L.  Ed.  411  (1813:  leading  case); 
Boston  Factory  v,  Hoit,  14  Vt.  92  (1842);  Kemp  v.  Mundell,  9  Leigh  (Va.) 
12  (1837).  Accord.  Hubbell  v.  Coundrey,  5  Johns.  (N.  Y.)  132  (1809).  Contra. 
But  if   the   judgment  is  not   a   record,   these   actions  will   lie.     Graham   v. 


I 


Ch.2)  DEBT  371 

money  of  Great  Britain,  which  he  owes  to  and  unjustly  detains  from 
him.    For  that  whereas  the  said  defendant  heretofore,  to  wit,  on  the 

day  of in  the year  of  our  Lord at 

by  his  certain  writing  obligatory,  sealed  with  his  seal,  and  now  shown 
to  the  court  of  our  said  lord  the  king,  before  the  king  himself  here, 
the  date  whereof  is  a  certain  day  and  year  above  named,  to  wit,  the 
day  and  year  aforesaid,  acknowledged  himself  to  be  held  and  firmly 

bound  unto  the  saidl  plaintiff  in  the  sum  of  £ above  demanded 

to  be  paid  to  the  said  plaintiff;    yet  the   said  defendant  (although 

often  requested  so  to  do)  hath  not  as  yet  paid  the  said  sum  of  £ 

above    demanded,    or    any    part    thereof,    to    the    said    plaintiff,    but 
hath  hitherto  wholly  neglected  and  refused,  and  still  neglects  and  re- 
fuses so  to  do.    To  the  damage  of  the  said  plaintiff  of  £  10,  and)  there- 
fore he  brings  his  suit. 
Pledges,  &;c. 


UNITED  STATES  v.  COLT. 

(Circuit  Court  of  the   United   States,   1818.     Pet.    C.   C.   145,   Fed.   Cas. 

No.  14,839.) 

This  was  an  action  of  debt,  brought  upon  an  embargo  bond,  in  the 
■district  court,  to  June,  1811;  and  the  declaration  demanded  twenty 
thousand  dollars,  which  the  defendant  was  alleged  to  owe  and  detain. 
It  then  recited  the  embargo  law,  laying  the  breach,  by  the  defendant ; 
"whereby  the  United  States  a,re  entitled  to  demand  a  sum,  not  ex- 
ceeding twenty  thousand  dollars,  and  not  less  than  one  thousand  dol- 
lars, viz.  twenty  thousand  dollars ;"  which  it  averred  to  be  due  to  the 
plaintiffs  and  detained  from  them  by  the  defendant.  Upon  nil  debet 
pleaded,  the  jury  found  a  verdict  for  four  thousand  dollars.  [Case  un- 
reported.] The  defendant  took  out  a  writ  of  error,  returnable  at 
April  sessions  1812,  of  the  circuit  court;  and  the  case  now  came  on 
for  decision. 

Washington,  Circuit  Justice. ^^  The  question  in  this  case  is, 
whether  the  action  is  maintainable.  The  objection  to  the  action  of 
debt,  where  the  penalty  is  uncertain  is,  that  this  action  can  only  be 
brought  to  recover  a  specific  sum  of  money,  the  amount  of  which  is 
ascertained.  It  is  said,  that  the  very  sum  demanded,  must  be  proved ; 
and  on  a  demand  for  thirty  pounds,  you  can  no  more  recover  twenty 
pounds,  than  you  can  a  horse,  on  a  demand  for  a  cow.  Blackstone 
says  (3  Bl.  Comm.  154)  that  debt,  in  its  legal  acceptation,  is  a  sum  of 
money  due,  by  certain  and  express  agreement ;  where  the  quantity 
is  fixed  and  does  not  depend  on  any  subsequerit  valuation  to  settle  it; 

Grigg,  3  Har.  (Del.)  408  (1842);    Warren  v.  Flagg,  2  Pick.  (Mass.)  448  (1824). 
See,  also,  Williams  v.   Preston,  3  J.   J.   Marsh.   (Kv.)  600,   20  Am.   Dec.   179 
<1830);    Curtis  v.  Gibbs,  2  N.  J.  Law,  377,  384  (1805). 
2  2  Portions  of  opinion  omitted. 


372  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

and  for  nonpayment,  the  proper  remedy  is  the  action  of  debt,  to  re- 
cover the  specific  sum  due.  So  if  I  verbally  agree  to  pay  a  certain 
price  for  certain  goods,  and  fail  in  the  performance,  this  action  lies ; 
for  this  is  a  determinate  contract.  But  if  I  agree  for  no  settled  price, 
debt  will  not  lie,  but  only  a  special  action  on  the  case ;  and  this  action 
is  now  generally  brought,  except  in  cases  of  contracts  under  seal,  in 
preference  to  the  action  of  debt;  because,  in  this  latter  action,  the 
plaintiff  must  prove  the  whole  debt  he  claims,  or  recover  nothing  at 
all.  For  the  debt  is  one  single  cause  of  action,  fixed  and  determined ; 
and  which,  if  the  proof  varies  from  the  claim,  cannot  be  looked  upon, 
as  the  same  contract  of  which  performance  is  demanded.  If  I  sue 
for  thirty  pounds,  I  am  not  at  liberty  to  prove  a  debt  of  twenty  pounds, 
and  recover  a  verdict  thereoli ;  for  I  fail  in  the  proof  of  that  contract, 
which  my  action  has  alleged  to  be  specific  and  determinate.  But  in- 
debitatus assumpsit  is  not  brought  to  compel  a  specific  performance  of 
the  contract ;  but  is  to  recover  damages  for  its  non-performance  ; 
and  the  damages  being  indeterminate,  will  adapt  themselves  to  the 
truth  of  the  case,  as  it  may  be  proved;  for  if  any  debt  be  proved,  it 
is  sufficient. 

The  doctrine  laid  down  by  this  writer,  appears  to  be  much  too  gen- 
eral and  unqualified ;  although  to  a  certain  extent,  it  is  unquestionably 
correct.  *  *  *  But,  it  is  not  essential,  that  the  contract  should  be 
express,  or  that  it  should  fix  the  precise  amount  of  the  sum  to  be  paid. 

*  *  *  So  an  action  of  debt  may  be  brought  for  goods  sold  to  de- 
fendant, for  so  much  as  they  were  worth.  2  Com.  Dig.  365.  So  debt 
will  lie  for  use  and  occupation,  where  there  is  only  an  implied  contract, 
and  no  precise  sum  agreed  upon.    6  Term.  R.  63. 

These  cases  prove,  that  debt  may  be  maintained  upon  an  implied, 
as  well  as  upon  an  express  contract ;  although  no  precise  sum  is 
agreed  upon.     *     *     * 

After  stating  what  constitutes  a  debt,  and  prescribing  the  remedy, 
Judge  Blackstone  proceeds  to  the  evidence  and  recovery;  and  says, 
"the  plaintiff  must  prove  the  whole  debt  he  claims,  or  he  can  recover 
nothing."  On  this  account  he  adds  "the  action  of  assumpsit  is  most 
commonly  brought ;  because  in  that,  it  is  sufficient  if  the  plaintiff 
prove  any  debt  to  be  due,  to  enable  him  to  recover  the  sum,  so  proved, 
in  damages."  If  this  writer  merely  means  to  say,  that  where  a  spe- 
cial contract  is  laid  in  the  declaration,  it  must  be  proved  as  laid;  the 
doctrine  will  not  be  controverted.  If  debt  be  brought  on  a  written 
agreement,  the  contract  produced  in  evidence,  must  correspond,  in  all 
respects,  with  that  stated  in  the  declaration;  and  any  variance  will  be 
fatal  to  the  plaintiff's  recovery.  Such  too  is  the  law  in  all  special  ac- 
tions in  the  case ;  but  if  Judge  Blackstone  meant  to  say,  that  in  every 
case,  where  debt  is  brought  on  a  simple  contract,  the  plaintiff  must 
prove  the  whole  debt  as  claimed  by  the  declaration,  or  that  he  can  re- 
cover nothing;    he  is  opposed  by  every  decision,  ancient  and  modern. 

*  *     *     In  the  case  of  Walker  v.  Witter,  Lord  Mansfield  is  express- 


( 


Ch.  2)  DEBT  373 

upon  this  point.  He  says,  that  debt  may  be  brought  for  a  sum  capable 
of  being  ascertained,  though  not  ascertained  at  the  time  of  bringing 
the  action ;  and  he  adds,  that  it  is  not  necessary  that  the  plaintiff 
should  recover  the  exact  sum  demanded.  In  the  case  of  Rudder  v. 
Price,  Lord  Loughborough,  who  has  shed  more  light  upon  this  subject 
tlian  any  other  judge,  says  "that  long  before  Slade's  Case,  the  demand 
in  an  action  of  debt  must  have  been  for  a  thing  certain  in  its  nature; 
yet,  it  was  by  no  means  necessary,  that  the  amount  should  be  set  out 
50  precisely,  that  less  could  not  be  recovered."  In  short,  if  before 
Slade's  Case,  debt  was  the  common  action  for  goods  sold,  and  work 
done ;  it  is  more  obvious,  that  it  was  not  thought  necessary  to  state 
the  amount  due,  with  such  precision,  as  that  less  could  not  be  recov- 
ered; for  in  those  cases,  as  the  same  judge  observes,  "the  sum  due 
was  to  be  ascertained  by  a  jury,  and  was  given  in  the  form  of  dam- 
ages." But  yet  the  demand  was  for  a  thing  certain  in  its  nature ;  that 
is,  it  was  capable  of  being  ascertained,  though  not  ascertained,  or  per- 
haps capable  of  being  so,  when  the  action  was  brought.  Whence  the 
opinion  arose,  that  in  an  action  of 'debt  on  a  simple  contract,  the  whole 
sum  must  be '  proved,  I  cannot  ascertain.  It  certainly  was  not,  and 
could  not  be  the  doctrine  prior  to  Slade's  Case ;  and  it  is  clear,  that  it 
was  not  countenanced  by  that  case.  However,  let  the  opinion  have 
originated  how  it  rnight.  Lord  Loughborough  in  the  above  case,  denom- 
inates it  an  erroneous  opinion,  and  says,  that  it  has  been  some  time 
since  corrected.     *     *     * 

In  this  case  the  statute  gives  the  action  of  debt,  and  I  cannot  perceive 
in  what  other  form,  than  this  ,one  which  has  been  adopted,  the  dec- 
laration could  have  been  drawn.  Had  it  claimed  the  smallest  sum,  it 
might  have  been  less  than  the  jury  might  have  thought  the  United 
States  entitled  to  recover;  and  yet,  judgment  could  not  have  been 
given  for  more.  I  know  of  no  precedent  for  a  declaration  in  debt, 
claiming  no  precise  sum  to  be  due  and  detained,  nor  any  principle  of 
law,  which  would  sanction  such  a  form.  On  the  other  hand,  I  find 
abundant  authority  for  saying,  that  the  demand  of  one  sum,  does  not 
prevent  the  recovery  of  a  smaller  sum,  where  it  is  diminished  by  ex- 
trinsic circumstances.     Rule  discharged.^^ 

2  3  incledon  v.  Crips,  2  Salk,  658  (1702):  Hughes  v.  Insurance  Co.,  8  WTieat. 
294,  310,  5  L.  Ed.  620  (1823).  Accord. 

So  of  debt  on  simple  contract.  Aylett  v.  Low,  2  W.  Bl.  1221  (1778);  Sage 
V.  Hawley,  16  Conn.  106,  41  Am.  Dee.  128  (1844);  White  v.  Walker,  1  T.  B. 
Mon.  (Ky.)  34  (1824);  Newlin  v.  Palmer,  11  Serg.  &  R.  (Pa.)  100  (1824). 
Accord.  Vaux  v.  Manwaring,  Fortes.  197  (1714) ;  Butler  v.  Limerick,  Minor 
(Ala.)  115  (1823 :    when  suit  on  writing).  Contra. 

So  of  debt  on  a  record.  McKenzie  v.  Connor,  1  Stew.  (Ala.)  162  (1827) 
semble;    Shelton  v.  Clark,  7  Ark.  194  (1846). 

But  an  amount  must  be  stated  as  the  amount  of  the  debt.  McKenzie  v. 
Connor,  1  Stew.  (Ala.)  162  (1827:  record);  Wilson  v.  Lennox,  1  Cranch  194, 
211,  2  L.  Ed.  79  (1803:  statute);  Blane  v.  Sansum,  2  Call  (Va.)  495  (1800: 
specialty). 

The  amount  alleged  in  the  beginning  of  the  declaration  is  immaterial. 
Hampton  v.  Barr,  3  Dana  (Ky.)  578  (1835) ;   Boyd  v.  Sargent.  1  Mo.  437  (1824). 


374  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

McGINNITY  V.  LAGUERENNE. 

(Supreme  Court  of  Illinois,  1848.     10  111.  101.) 

Trumbull,  J.  This  was  an  action  of  debt,  commenced  by  the  ap- 
pellees against  the  appellant,  upon  a  promissory  note  and  an  account. 
The  declaration  contains  two  counts,  the  first  of  which  is  special  upon 
the  note,  and  the  second,  the  common  money  counts  for  goods  sold, 
work  done  &c.,  all  in  one  count.  After  the  issues  were  found  for  the 
appellees  in  the  Court  below,  the  appellant  entered  a  motion  in  arrest 
of  judgment,  which  motion  was  overruled  and  judgment  entered  in  fa- 
vor of  appellees  for  five  hundred  and  eighteen  dollars  debt,  and  one 
hundred  and  seventy-nine  dollars  and  thirty  cents  damages. 

Several  errors  have  been  assigned,  only  one  of  which,  the  over- 
ruling the  motion  in  arrest  of  judgment,  we  deem  it  necessary  to  no- 
tice, as  that  is  decisive  of  the  case.  The  declaration  commences  in 
debt,  and  the  first  count  sets  forth  that  the  appellant  on  a  certain  day 
and  year,  at,  &c.,  "by  his  promissory  note  of  that  date,  by  him  made, 
for  value  received,  four  months  after  the  date  of  said  note,  promised 
the  said  plaintiffs  to  pay  them  or  their  order  without  defalcation,  the 
sum  of  four  hundred  and  ten  dollars,"  and  concludes  with  a  request 
and  refusal  to  pay.  This  count  is  sufficient.  It  sets  forth  the  legal 
effect  of  the  note  sued  upon,  and  the  liability  to  pay  arises  from  the 
character  of  the  instrument ;  hence  the  usual  allegation,  "whereby  the 
said  defendant  then  and  there  became  liable  to  pay,"  &c.  was  wholly 
unnecessary.  Nor  is  the  count  bad  as  a  count  in  debt.  The  word 
promised  is  not  used  by  way  of  averment  to  show  the  liability  of  the 
party  to  pay,  but  as  descriptive  of  the  instrument  sued  upon.^* 

The  second  count,  however,  is  of  a  different  character.  That  is  not 
a  special  count  upon  a  contract  which  of  itself  creates  a  debt  and 
raises  a  liability  to  pay,  but  the  general  indebitatus  count  upon  the 
implied  promises  of  the  appellant,  and  after  setting  forth  that  the  appel- 
lant was  indebted  to  the  appellees  in  a  certain  sum  of  money,  for  mon- 
ey lent,  goods  sold,  work  done,  &c.,  it  concludes  by  averring  that  the 
appellant  "in  consideration  thereof,  promised  the  plaintiffs  to  pay  them 
said  last  sum  when  thereunto  requested,"  &c.  This  conclusion  makes 
the  second  a  count  in  assumpsit  and  not  in  debt."^  Had  the  pleader 
intended  it  for  a  count  in  debt,  he  should  have  used  the  word  agreed 
instead  of  the  word  "promised,"  or  have  stated  the  liability,  so  as  to 

24  Mahan  v.  Sherman,  8  Blackf.  (Ind.)  63  (1846).  Accord. 

So  of  debt  on  a  specialty.  Bank  of  State  v.  Clark,  2  Ark.  375  (1840) ; 
Smith  V.  Webb,  16  111.  105  (1854).  There  the  promise  of  the  defendant  must 
be  alleged.    Sayre  v.  Rose,  3  N.  J.  Law,  742  (ISll). 

25  Palmer  v.  Stavely,  12  Mod.  511  (1701)  semble;  Dalton  v.  Smith,  2  Smith, 
618  (1805);  Brill  v.  Neele,  3  B.  &  Al.  208  (1819);  Mahaffey  v.  Petty,  1  Ga. 
261,  265  (1846)  semble;  Metcalf  v.  Robinson,  Fed.  Cas.  No.  9.497  (1841).  Ac- 
cord. National  Bank  v.  Abell,  03  Me.  346  (1872);  Payne  v.  Smith,  12  N.  H. 
34,  41  (1841).  Contra. 


"i^: 


I 


Ch.2)  DEBT  375 

have  avoided  the  use  of  the  latter  word.  This  case  comes  directly 
within  the  decision  made  at  this  term  in  the  case  of  Cruikshank  v. 
Brown,  10  111.  75,  and  because  of  the  misjoinder  of  counts  in  debt  and 
assumpsit  the  judgment  will  have  to  be  reversed.  So  long  as  the  dis- 
tinction between  forms  of  action  is  kept  up,  parties  must  observe  those 
distinctions  or  abide  the  consequences. 

The  only  distinguishing  feature  between  the  common  counts  in  as- 
sumpsit and  in  debt  is,  that  in  the  one  the  word  promised  is  used,  and 
in  the  other  it  is  not.  If  this  distinction  is  disregarded,  it  will  be  im- 
possible for  a  defendant  to  know  from  the  declaration  in  which  form 
of  action  he  is  sued,  and  consequently  he  cannot  know  how  to  frame 
his  defence,  as  the  pleading  as  well  as  the  judgment  in  the  two  actions 
is  different,  and  what  would  be  a  good  defence,  as  for  instance  the 
statute  of  limitations  of  five  years,  if  the  action  were  assumpsit,  would 
be  no  defence  if  the  action  were  debt. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  re- 
manded with  leave  to  the  appellees  to  amend  their  declaration. 

Judgment  reversed. 


GREEN  V.  THORNTON. 
(Supreme  Court  of  Arkansas,  1847.    7  Ark.  383.) 

Debt,  determined  in  September,  1845,  before  Clendenin,  Judge.  The 
declaration  had  three  counts  on  a  writing  obligatory  for  $110,  neither 
count  containing  a  breach  in  itself — there  was  a  fourth  count  for  mon- 
ey paid,  and  the  fi.fth  count  was  on  an  account  stated.  The  breach 
was  that  the  defendants  had  not  paid  the  sum  of  money  in  the  writing 
obligatory  specified.  There  was  a  demurrer  to  the  declaration  for 
want  of  a  breach ;  which  was  sustained  as  to  the  2d  and  3d  counts  and 
overruled  as  to  the  others.  Final  judgment  was  taken  for  the  plain- 
tiffs, the  defendants  refusing  to  say  anything.^'' 

Flanagin,  for  the  plaintiffs.  The  writings  described  in  the  first 
and  third  counts  are  different  from  that  described  in  the  second;  and 
it  is  uncertain  to  which  the  breach  applies.  It  is  immaterial  whether 
the  demurrer  be  sustained  or  not  to  the  fourth  and  fifth  counts;  be- 
cause a  judgment  even  upon  verdict,  would  be  of  no  avail,  as  there 
is  no  breach  in  said  counts.  Saund.  Plead.  157;  3  Cro.  R.  415,  425, 
486,  661. 

The  first  count  is  defective  because  there  is  no  allegation  of  pre- 
sentment to  the  payor  and  notice  to  the  assignor  of  non-payment. 
Chitty  on  Bills,  592.     *     *     * 

Jordan,  for  defendant.  The  only  question  is  as  to  the  sufficiency 
of  the  breach.     The  breach  expressly  denies  the  payment  of  the  sum 

2  6  Parts  of  the  statement  of  facts  and  of  the  argument  of  counsel  omitted. 
Whit.C.L.Pl.— 25 


376  PLEADINGS  IN  CONTRACT  ACTIONS  (Part  2 

of  money  by  the  defendants  in  the  said  writing  obligatory  specified, 
which  is  sufficiently  broad  to  show  that  the  debt  remained  wholly  un- 
paid. The  words  "the  debt  still  remains  wholly  unpaid"  distinctl}' 
negative  the  idea  of  payment,  and  are  sufficient  though  the  whole 
breach  be  not  in  the  strict  form  of  the  most  approved  precedents, 
Dickerson  v.  Morrison,  5  Ark.  316.     *     *     * 

The  fourth  and  fifth  counts  are  good  in  form  and  substance,  as  they 
charge  the  defendants  below  with  a  joint  indebtedness  to  the  plaintiff, 
and  negative  the  payment  of  the  sum  of  money  set  out  in  each  count. 

Johnson,  C.  J.  This  case  is  brought  into  this  court  upon  a  demur- 
rer to  the  declaration.  The  court  below  sustained  the  demurrer  as  to 
the  second  and  third  counts  and  overruled  it  as  to  the  first,  fourth  and 
fifth.  The  breach  of  the  contract  being  essential  to  the  cause  of  action, 
must  in  all  cases  be  stated  in  the  declaration.  The  breach  must  ob- 
viously be  governed  by  the  nature  of  the  stipulation.  It  should  be  as- 
signed in  the  words  of  the  contract,  either  negatively  or  affirmatively, 
or  in  words  which  are  co-extensive  with  the  import  and  effect  of  it. 
The  declaration  in  this  case  contains  five  separate  and  distinct  counts, 
and  no  breach  is  assigned  except  in  the  last  and  that  simply  negatives 
the  payment  of  the  sum  of  money  in  the  writing  obligatory  specified. 
When  the  plaintiff  inserts  several  distinct  counts  in  his  declaration, 
each  of  which  is  based  upon  a  separate  and  distinct  cause  of  action, 
and  then  postpones  his  breach  until  he  concludes  his  last  count,  he  must 
negative  the  payment  of  the  several  sums  therein  demanded.  The 
breach  in  this  case  is  not  in  the  words  of  the  contract  either  negative- 
ly or  affirmatively,  nor  can  it  be  said  to  be  co-extensive  with  the  im- 
port and  effect  of  it.  The  first  and  second  counts  contain  but  few  of 
the  essentials  of  a  good  declaration  and  are  wholly  insufficient  to  fix 
any  liability  upon  the  endorser.  They  show  no  notice  of  non-payment 
by  the  maker  or  that  the  instrument  sued  upon  had  been  protested  for 
non-payment.^'^  The  third  is  in  due  form,  and  if  a  sufficient  breach 
had  been  added,  it  would  have  been  sufficient  to  put  the  defendants 
upon  their  defence.^^  The  fourth  and  fifth  are  in  the  usual  form  of 
common  counts  for  money  laid  out  and  expended  and  for  an  account 
stated,  but  are  wholly  insufficient  for  want  of  the  necessary  breach.^** 

2  7  The  fulfillment  of  conditions  precedent  and  concurrent  must  be  alleged 
in  all  special  counts  in  debt.  Sands  v.  Clark,  8  C.  B.  751  (1S49:  simple  con- 
tract); United  States  Co.  v.  Lodge,  5S  Fla.  373,  50  South.  952  (1909:  special- 
ty); Hoy  V.  Hoy,  44  111.  469  (1SG7 :  specialty);  Caldwell  v.  Richmond,  64 
111.  30  (1S72:  specialty;  concurrent  condition)  semble;  Morgan  v.  Gutten- 
berg,  40  N.  J,  Law,  394  (1S7S:  specialty) ;  Nelson  v.  Bostwich,  5  Hill  (N. 
Y.)  37,  40  Am.  Dec.  310  (1843 :  specialty) ;  Slacum  v.  Pomery,  6  Cranch,  221, 
3  L.  Ed.  205  (1810:  simple  contract);  Nottingham  v.  Ackiss,  110  Va.  810,  67 
S.  E.  351  (1910 :    simple  contract). 

A  conditional  note  must  not  be  stated  as  an  absolute  one.  Nottingham  v. 
Ackiss,  107  Va.  63,  57  S.  E.  592  (1907). 

2  8  See  next  case. 

2  9  Hudspeth  v.  Gray,  5  Ark.  157  (1843) ;    Buckner  v.  Blair,  2  Munf.  (Va.) 


Ch.  2)  DEBT  377 

We  think  that  there  can  be  no  doubt  but  that  the  circuit  court  erred  in 
sustaining  any  one  of  the  counts  in  the  declaration.  The  judgment  is 
therefore  reversed. 


REYNOLDS  v.  HURST. 
(Supreme  Court  of  Appeals  of  West  Virginia,  ISSl.     18  W.  Va.  648.) 

Patton,  J.,  announced  the  opinion  of  the  Court.^° 
Benjamin  S.  Reynolds  brought  an  action  of  debt  against  John  W. 
Hurst  in  the  circuit  court  of  Harrison  county  on  the  6th  day  of  Sep- 
tember, 1879,  "for  $600.00,  damages  $300.00."  The  defendant  de- 
murred to  the  declaration  generally,  pleaded  conditions  performed,  on 
which  issue  was  joined,  and  filed  a  special  plea  in  writing,  to  which 
the  plaintiff  demurred  generally.  The  court  overruled  the  defendant's 
demurrer  to  the  plaintiff's  declaration  and  sustained  the  plaintiff's  de- 
murrer to  the  defendant's  special  plea.  The  case  was  tried  by  a  jury, 
and  a  verdict  was  rendered  for  the  plaintiff"  for  $163.26,  upon  which 
judgment  was  rendered,  with  interest  from  the  5th  day  of  January, 
1881,  and  costs.  Thereupon  the  defendant  obtained  a  writ  of  error 
and  supersedeas  to  this  Court. 

The  declaration  is  on  a  penal  bond  or  bond  with  collateral  condi- 
tion. The  plaintiff  declares  in  the  usual  form  in  the  beginning  of  his 
declaration:  "Benjamin  S.  Reynolds  complains  of  John  W.  Hurst, 
who  has  been  summoned  to  answer,  &c.,  of  a  plea,  that  the  defendant 
render  unto  the  plaintiff  the  sum  of  $600.00,  which  to  the  plaintiff  the 
defendant  owes  and  from  him  unjustly  detains,"  and  then  sets  forth 
the  obligation  for  $600.00,  the  condition  annexed,  and  the  breach  of 
the  condition,  and  concludes  the  declaration  as  follows :  "And  the 
plaintiff*  says,  that  by  reason  of  the  return  of  said  logs  to  the  said  Gil- 
bert L.  and  Amanda  G.  Hurst  he  hath  sustained  damages  to  the  amount 
of  $158.00,  the  value  thereof  as  fixed  by  the  judgment  aforesaid,  and 
that  the  said  Gilbert  L.  Hurst  and  Amanda  G.  Hurst  have  both  and 
each  of  them  failed  and  refused  to  pay  the  plaintiff  the  said  damages 
being  the  value  of  said  logs  as  aforesaid,  which  have  accrued  to  the 
plaintiff  by  reason  of  the  return  of  said  logs  to  the  said  Gilbert  L. 
and  Amanda  G.  Hurst,  and  that  an  action  hath  accrued  to  the  plain- 
tiff to  have  and  demand  the  value  thereof  from  the  defendant ;  by  rea- 
son whereof  the  plaintiff  saith  he  hath  been  injured  and  hath  sustained 
damage  to  the  amount  of  $300.00.    Hence  he  brings  his  suit,  &c. 

336  (1811);  Douglass  v.  Central  Land  Co.,  12  W.  Va.  502  (1878).  Accord. 
Goodchild  v.  Pledge,  1  M.  &  W.  363  (1836);  Gebhart  v.  Francis,  32  Pa.  78 
(1858).  Contra. 

One  breach  will  do  for  several  counts.  Somerville  v.  Grim,  17  W.  Va. 
803  (1881). 

In  debt  on  a  judgment,  nonpayment  must  be  alleged.  Bank  of  Louisana 
V.  Watson,  4  Ark.  518  (1842);  Dewey  v.  Bradbury,  2  Tyler  (Vt.)  201,  207 
(1802)  semble. 

3  0  Part  of  the  opinion  omitted. 


378  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

The  proposition  is  too  plain  for  discussion,  that  in  a  declaration  at 
common  law  upon  a  bond  with  collateral  condition  for  the  payment  of 
money  or  for  the  performance  of  some  specific  duty  it  is  necessary  to 
aver  the  non-payment  of  the  penalty,  as  well  as  the  breach  of  the  con- 
dition; and  such  are  all  the  forms.  4  Rob.  (New)  Pr.  109;  The 
State  V.  McClane,  &c.,  2  Blackf.  (Ind.)  192  (official  bonds  are  excep- 
tions, etc.).  A  bond  with  collateral  condition  is  a  bond  to  pay  money 
with  a  condition  annexed  to  be  void,  if  a  collateral  stipulation  to  do  of 
omit  something  be  complied  with.  At  common  law  the  penalty  is  for- 
feited by  the  breach  of  the  condition,  and  then  becomes  a  debt,  and  as 
such  is  recoverable  by  an  action  of  debt,  the  relief  to  the  obligor  being 
in  a  court  of  equity  alone,  which  was  accustomed  to  enjoin  the  obligee 
from  compelling  the  obligor  to  pay  the  penalty,  provided  the  latter 
would  pay  the  actual  damages  sustained  in  consequence  of  the  breach 
of  the  stipulation.  Subsequently  by  Stat.  8  and  9,  William  III,  c.  2, 
§  8,  instead  of  having  to  resort  to  a  court  of  equity,  the  obligee  could 
assign  as  many  breaches  of  the  condition,  as  he  chose,  and  a  jury  as- 
certained the  actual  damages  sustained  by  reason  of  the  breaches ;  and 
upon  this  verdict,  judgment  was  entered  for  the  penalty  of  the  bond, 
to  be  discharged  by  the  payment  of  the  damages  assessed  by  the  jury. 
This  statute  was  adopted  in  1  Rev.  Code  1819,  p.  509,  §  82,  and  was 
continued  in  the  Codes  of  1849  and  1860. 

Before  these  statutes  only  one  breach  could  be  assigned  in  an  ac- 
tio.n  of  debt  on  a  bond  with  collateral  condition.  The  assignment  of 
more  was  duplicity.  However  small  the  breach  shown  the  whole  pen- 
alty was  recovered,  and  the  party  was  driven  into  a  court  of  equity  to 
be  relieved  against  the  penalty.  Coalter,  Judge,  in  Allison  v.  Bank,  6 
Rand.  (Va.)  227.  Upon  breach  of  the  condition  the  bond  became  for- 
feited, and  constituted  a  debt. 

There  are  two  modes  of  declaring  upon  the  bond,  one  by  declaring 
upon  it  as  a  single  bill  without  noticing  the  condition,  in  which  case 
the  defendant  craves  oyer  of  the  condition  and  pleads  performance, 
and  the  plaintift  replies  by  assigning  breaches.  The  other  is  to  set  out 
the  condition  in  the  declaration  and  assign  the  breaches  in  it.  Coalter, 
Judge,  in  Allison  v.  Bank,  supra ;  Ward  &  Ellzey  v.  Fairfax  Justices, 
4  Munf.  (Va.)  494;  Nadenbush  v.  Lane,  4  Rand.  (Va.)  413;  Green 
v.  Bailey,  5  Munf.  (Va.)  246.  Or  if  the  defendant  fails  to  plead,  and 
the  case  goes  to  a  writ  of  enquiry  without  plea,  the  plaintiff  must  as- 
sign his  breaches  by  suggestion  thereof  in  writing.  In  either  mode  the 
form  of  action  is  debt;  and  the  defendant  must  demand  the  penalty 
of  the  bond  and  allege  its  non-payment  as  in  all  other  cases  of  actions 
of  debt.  The  cases  are  numerous  on  this  subject  in  Virginia  and  are 
uniform,  that  in  an  action  of  debt  non-payment  of  the  debt  demanded 
must  be  averred.  Braxton's  Adm'x  v.  Lipscomb,  2  Munf.  282 ;  Green 
V.  Dulany,  2  Munf.  518;  Norvell  v.  Hudgins,  4  Munf.  496;  Hill  v. 
Harvey,  2  Munf.  525;  Buckner  et  ux.  v.  Blair,  2  Munf.  336;  Nichol- 
son V.  Dixon's  Heir,  5  Munf.  198;   Cobbs  v.  Fountaine,  3  Rand.  484; 


I 


Ch.  2)  DEBT  379 

Strange  v.  Floyd,  9  Grat.  474 ;  Douglass  v.  Central  Land  Co.,  12  W. 
Va.,  opinion  of  Green,  Judge,  510,  511.     *     *     * 

Our  statute,  Code  c.  131,  §  17,  differs  from  the  provisions  of  8  and 
9  William  III,  c.  2,  §  8,  and  1  Rev.  Code  1819,  p.  509,  §  82,  continued 
in  Codes  of  1849  and  1860,  before  referred  to,  in  that  it  provides  in 
any  "action  for  a  penalty  for  the  non-performance  of  any  condition, 
covenant  or  agreement  the  plaintiff  may  assign  as  many  breaches,  as 
he  thinks  fit;  *  *  *  the  jury  impaneled  in  any  such  action  shall 
ascertain  the  damages  sustained  or  the  sum  due  by  reason  of  the 
breaches  assigned  including  interest  thereon  to  the  date  of  the  verdict, 
and  judgment  shall  be  entered  for  what  is  so  ascertained,"  not  for  the 
penalty  to  be  discharged  by  what  is  actually  due,  but  for  what  is  ac- 
tually due. 

It  has  been  suggested,  that  by  this  change  in  the  statute  as  to  the 
form  of  the  judgment  to  be  entered  in  an  action  on  a  penal  bond  it  is 
no  longer  necessary  to  sue  for  more  than  the  plaintiff  is  entitled  under 
the  law  to  recover.  Under  the  old.  law  he  could  recover  neither  more 
nor  less  than  the  amount  of  the  penalty,  and  therefore  he  had  to  sue 
for  the  penalty  and  allege  its  non-payment,  but  under  the  statute  he 
can  sue  for  what  under  the  law  he  was  actually  entitled  to  recover. 
Without  undertaking  to  discuss,  whether  in  a  proper  action  such  a 
declaration  could  be  maintained,  it  is  obvious,  that  whatever  he  does 
sue  for,  whether  the  penalty  of  the  bond  or  the  sura  actually  due,  (if 
that  could  be  done  at  all)  he  must  aver  the  non-payment  of  the  sum  de- 
manded. He  cannot  demand  the  penalty  of  the  bond,  and  aver  the 
non-payment  of  some  other  sum.'  He  can  not  sue  for  the  sum  actually 
due  and  aver  non-payment  of  the  penalty. 

In  the  case  at  bar  the  declaration  of  the  plaintiff  in  error  declared 
upon  the  penalty  of  the  bond  and  averred  non-payment  of  the  damages 
claimed  and  not  non-payment  of  the  penalty.  I  am  of  opinion,  that  the 
court  improperly  overruled  the  demurrer  to  the  declaration  on  that 
ground.    The  demurrer  should  have  been  sustained.     *     *     * 

The  other  Judges  concurred. 

Judgment  reversed.    Case  remanded. ^^ 

31  Clark  V.  Russell,  2  Day  (Conn.)  112  (1S0.5)  semble;  Grpscorv  v.  Freeman, 
22  N.  J.  Law,  405  (1S50);  Smith  v.  Jauseu,  8  Johns.  (N.  Y.)  Ill  (ISll)  semble; 
Salmon  v.  Jenkins,  4  McCord  (S.  C.)  288  (1827);  State  v.  Witherspoon,  9 
Hnmph.  (Tenn.)  .894  (1848)  semble ;    Strange  v.  Floyd.  9  Grat.  (Va.)  474  (18-52) 

But  in  a  suit  on  an  official  bond  a  breach  need  not  be  alleged.  State  v. 
McClane,  2  Blackf.(Ind.)  192  (1828);    State  v.  Phares,  24  W.  Va.  657    '1884). 


380  PLEADINGS  IN  CONTRACT  ACTIONS  (Part  2 

MORRIS  CANAL  &  BANKING  CO.  v.  VAN  VOORST. 
(Supreme  Court  of  New  Jersey,  1843.     20  N.  J.  Law,   167.) 

This  was  action  on  a  bond  with  a  special  condition,  that  the  Cashier 
of  the  Morris  Canal  &  Banking  Company,  should  faithfully  discharge 
his  duties. 

The  plaintiffs  in  the  first  instance  filed  a  declaration,  setting  out  the 
condition  of  the  bond  and  assigning  breaches.  The  defendant  having 
pleaded  to  the  breaches  assigned,  the  plaintiffs  applied  to  this  court, 
in  the  term  of  May,  1842,  for  leave  to  amend  their  declaration  by  strik- 
ing out  the  recital  of  the  condition  of  the  bond  and  the  assignment  of 
breaches  and  thus  leaving  their  declaration  general,  as  on  a  common 
money  bond.  The  motion  was  granted  and  the  amendment  made.  19 
N.  J.  Law,  9. 

To  the  amended  declaration,  the  defendant,  after  craving  oyer  and 
setting  out  the  bond  and  condition,  put  in  a  special  demurrer ;  and  as- 
signed for  causes  of  demurrer,  that  the  plaintiffs  had  not  in  their  dec- 
laration set  out  any  breaches  of  the  condition  of  the  bond;  nor 
showed  that  they  had  sustained  any  damages  by  reason  of  any  breach 
or  breaches  thereof, 

HoRNBivOWER^  C.  J.  The  court  upon  the  argument  of  the  previous 
motion  to  amend,  19  N,  J.  Law,  9,  felt  very  unfriendly  to  the  applica- 
tion; but  as  the  effect  of  a  denial  would  only  have  been,  to  force  the 
plaintiffs  to  a  discontinuance,  and  the  commencement  of  a  new  suit, 
the  motion  was  granted  on  payment  of  costs,  &c.^^  Among  other 
things,  in  opposition  to  that  motion,  it  was  urged,  that  according  to  the 
terms,  and  more  especially  the  spirit  and  design  of  the  statute  of  8 
and  9  W.  3,  the  plaintiffs  ought  to  set  out  the  condition  of  the  bond, 
and  assign  the  breaches  in  the  declaration ;  and  that  therefore,  not- 
withstanding the  case  of  Bank  of  Eliz.  v.  Chetwood,  7  N.  J.  Law,  32, 
the  plaintiff's  having  made  their  election,  and  by  assigning  breaches  in 
the  declaration,  drawn  out  the  defence,  ought  not  now  to  be  permitted 
to  abandon  that  declaration,  and  by  a  new  course  of  pleading,  deprive 
the  defendant  of  the  defences  indicated  by  her  pleas.  We  might  in- 
deed have  obviated  that  difficulty  by  imposing  terms  on  the  plaintiff's 
and  requiring  them,  as  a  condition  of  their  rule,  to  furnish  the  de- 
fendant with  a  specification  or  particular  of  the  breaches  intended  to 
be  assigned  in  the  replication.  But  the  plaintiffs  might  have  rejected 
the  rule,  loaded  with  such  a  condition,  and  have  resorted  to  a  new  ac- 
tion. The  rule  was  therefore  granted ;  but  as  this  court,  in  the  case 
of  Bank  v.  Chetwood,  had  given  no  reasons  for  overruling  the  demur- 

3  2  If  tbe  plaintiff  unnecessarily  alleges  the  condition  of  the  bond,  and 
assigns  breaches  which  are  insufficient,  he  cannot  maintain  his  declaration 
by  rejecting  the  insufficient  breaches  as  surplusage.  Lunn  v.  Payne,  6  Taunt 
140  (1S15)  ;  Ansly  v.  Mock,  8  Ala.  444  (1845) ;  Love  v.  Kidwell,  4  Blaekf. 
.(Ind.)  553  (1838). 


i 


Ch.  2)  DEBT  381 

rer,  and  as  that  decision  had  never  been  satisfactory  to  the  bar,  nor 
to  my  own  mind,  I  was  willing  to  hear  the  matter  fully  discussed,  if 
the  defendant's  counsel  thought  proper  to  raise  the  question  upon  de- 
murrer to  the  amended  declaration ;  and  an  intimation  to  that  effect 
was  given  by  the  court,  in  pronouncing  a  decision  upon  that  motion. 
Accordingly,  the  plaintiffs  having  amended  their  declaration  in  the  man- 
ner proposed,  the  defendant,  after  craving  oyer,  and  setting  out  the 
bond  and  condition,  put  in  a  special  demurrer  to  the  declaration ;  assign- 
ing for  cause,  that  the  plaintiffs  had  not  therein  set  out  or  complained 
of  any  breaches  of  the  condition  of  the  bond;  nor  showed  that  they 
had  sustained  any  damage  by  any  breach  or  breaches  thereof. 

The  matter  has  been  very  fully  and  ably  debated  by  the  counsel  in 
this  cause,  and  the  result  is,  that  the  court  feels  itself  compelled  by  the 
force  of  precedents,  including  the  case  of  Bank  v.  Chetwood,  7  N.  J. 
Law,  32,  to  overrule  the  demurrer.  This  seems  to  render  it  necessary 
for  us,  to  state  the  reasons  that  would  have  led  us  to  a  different  re- 
sult, had  it  been  an  unsettled  question;  but  the  injustice  and  hard- 
ship of  the  rule  are  so  glaring,  that  we  have  felt  it  our  duty  in  the 
exercise  of  a  power,  which  if  not  incident  to  the  court,  is  clearly  given 
to  it  in  the  one  hundred  and  first  section  of  the  practice  act.  Elm.  Dig. 
432,  to  adopt  a  rule  of  practice  in  relation  to  suits  on  such  bonds,  which 
we  believe  will  in  part,  at  least,  obviate  the  evils  complained  of ;  and 
to  remedy  which  the  legislature  of  New  York  have,  by  statute  made  it 
compulsory  on  plaintiff's  to  set  out,  the  condition  and  assign  breaches 
in  the  declaration. 

The  necessity  of  such  a  statutory  provision,  or  of  some  rule  of  prac- 
tice to  meet  the  exigencies  of  the  case,  is  apparent,  from  the  consid- 
eration, that  the  rules  of  pleading  never  permit  a  departure.  Every 
subsequent  plea  must  sustain  the  first  cause  of  action  assigned,  or  the 
first  defence  that  has  been  set  up.  Suppose  then,  a  plaintiff  declares 
generally  as  on  a  money  bond;  what  can  a  defendant  plead?  He  may 
indeed  deny  the  bond,  by  pleading  non  est  factum  or  he  may  plead 
per  fraudum,  or  duress,  or  any  other  matter  going  to  defeat  the  in- 
strument ijtself.  But  he  knows  the  bond  is  a  good  one  and  that  it  was 
given  with  a  special  condition  to  perform  certain  covenants  or  agree- 
ments; he  is  ignorant  however  of  the  ground  of  the  plaintiff''s  com- 
plaint; he  does  not  know  in  what  particular  the  plaintiff  intends  to 
charge  him  with  a  breach  of  the  condition,  and  he  cannot  plead  in 
avoidance  or  in  bar  of  any  matter  not  alleged  in  the  declaration.  He  is 
confined  to  the  plea  of  performance  of  the  whole  condition ;  what 
then  is  the  defendant's  situation?  The  plaintiff  in  his  replication  as- 
signs breaches.  The  complaint  is  new  to  the  defendant;  he  may  be 
a  representative,  as  in  this  case;  or  a  mere  surety;  upon  inquiry  he 
may  find,  that  the  principal  had  a  release,  or  a  license,  or  that  there 
had  been  an  accord  and  satisfaction  for  that  breach,  or  he  may  discover 
some  other  matter,  operating  as  a   discharge,  or  an   excuse  for  the 


382  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

breach  assigned ;  but  he  cannot  plead  it ;  he  cannot  depart  from  his 
first  plea;  he  must  insist  upon  performance,  and  stand  or  fall  by  that 
alone. 

Again,  such  a  construction  of  the  statute  as  permits  a  plaintiff  to 
declare  generally,  on  such  a  bond,  practically  deprives  a  defendant  of 
the  benefit  of  the  act  authorizing  him  to  plead  several  matters  in  his 
defence.  If  the  declaration  assigned  the  breaches,  the  defendant  under 
the  statute  might  plead  more  pleas  than  one  to  each  of  the  breaches. 
But  the  "act  to  facilitate  pleadings,"  Elm.  Dig.  422,  does  not  authorize 
a  defendant  to  reply  or  rejoin  several  matters.  This  has  been  repeat- 
edly settled.  The  consequence  is,  a  defendant  in  an  action  like  this, 
cannot  rejoin  several  matters  to  any  one  breach  assigned  in  the  repli- 
cation, even  if  the  rule  forbidding  a  departure  in  pleading,  did  not  tie 
up  his  hands.  Whereas,  if  the  plaintiff  was  obliged  to  assign  the 
breaches  complained  of,  in  his  declaration,  the  defendant  might  meet 
each  of  them  with  such  answers  as  the  nature  of  his  defence  might 
require. 

In  view  of  these  and  other  difficulties,  and  which  I  am  inclined  to 
think  a  fair  construction  of  the  8  and  9  W.  Ill  would  have  obviated, 
the  court  has  adopted  the  rule  of  practice  referred  to;  a  copy  of 
which  is  hereto  annexed. 

Demurrer  overruled  with  costs.^' 

33  The  condition  itself  need  not  be  alleged.  Ethersey  v.  Jackson,  8  T.  R. 
255  (1799);  Holley  v.  Acre,  23  Ala.  603  (1853);  Sterne  v.  Trott,  11  Conn. 
559  (1S36);  Slielton  v.  French,  33  Conn.  489,  495  (186G);  State  v.  Votaw,  8 
Blackf.  (Ind.)  2  (1846);  Raud  v.  Rand,  4  N.  H.  267,  277  (1828)  semble:  Reed 
V.  Drake.  7  Wend.  (N.  Y.)  345,  349  (1831);  Burkholder  v.  Lapp,  31  Pa.  322 
(1858);  Butcher  v.  Carlile,  12  Grat.  (Va.)  520,  526  <1855);  Minnick  v.  Wil- 
liams, 77  Va.  758  (1883).  Otherwise  if  the  bond  is  lost.  Rand  v.  Rand,  4 
N.  H.  267  (1828). 

The  breach  of  the  condition  need  not  be  alleged.  Hbmphrey  v,  Rigby,  2 
Chitty,  298  (1816) ;  Governor  v.  Wiley,  14  Ala.  172, 177  (1848)  ;  Gordon  v.  Atkin- 
son, Morris  (Iowa)  195  (1843) ;  State  v.  Leonard,  6  Blackf.  (Ind.)  173  (1842) ; 
Scott  V.  State,  2  Md.  284,  289  (1852);  Fulkerson  v.  Steen,  3  Mo.  377  (1834); 
Reed  v.  Drake,  7  Wend.  (N.  Y.)  345  (1831) ;  State  v.  Witherspoon,  9  Humph. 
(Tenn.)  394  (1848).  Accord.  Fenwick  v.  Peart,  Hardin  (Ky.)  6  (1805);  Ma- 
chiasport  v.  Small,  77  Me.  109  (1885)  semble;  State  v.  Harmon,  15  W.  Va. 
115,   128  (1879)   semble.  Contra. 

Statutes  requiring  allegation  of  breaches  in  the  declaration  are  common. 
Patric4v  V.  Rucker,  19  111.  428,  439  (1858) ;  State  v.  Harvey,  8  Blackf.  (Ind.) 
527  (1847);  Payne  v.  Snell,  4  Mo.  238  (1835);  Rule  of  Court,  20  N.  J.  Law, 
170  (1843);  Nelson  v.  Bostwick.  5  Hill  (N.  Y.)  37,  40  Am.  Dec.  310  (1843); 
State  V.  Caffee,  6  Ohio,  150  (1833). 

So  real  conditions  subsequent  need  not  be  noticed  in  the  declaration.  Les- 
her  V.  United  States  Co..  2.39  111.  502.  50S,  88  N.  E.  208  (1909).  Nor  collateral 
stipulations.  Brotherton  v.  Brotherton.  19  Wend.  (N.  Y.)  827  (1838).  Accord. 
Davis  V.  Mead,  13  Grat.  (Va.)  118  (1856).  Contra. 


Ch.  2)  DEBT  383 

HART  V.  TOLMAN. 

(Supreme  Court  of  Illinois.  1844.     6  111.  1.) 

Shields,  J.'*  This  is  a  writ  of  error  to  the  Circuit  Court  of  Jer- 
sey county.  The  action,  debt  on  bond  conditioned  for  the  payment  of 
money.  The  declaration  contains  two  counts.  There  is  a  general  de- 
murrer to  the  whole  declaration,  which  the  Court  below  sustained. 
This  decision  is  assigned  for  error. 

The  first  count  is  bad.  The  bond  sued  upon  contains  a  condition, 
that  upon  the  release  of  Urial  Downey  from  the  obligation  of  a  previ- 
ous bond,  he,  the  said  Downey,  should  pay  the  appellant  the  sum  of 
two  hundred  dollars ;  but  there  is  no  averment  in  the  count  that  he 
has  ever  been  released  or  discharged  from  the  obligation  of  the  pre- 
vious bond.  On  the  contrary,  it  shows  that  his  representative  is  still 
liable  on  such  bond  for  the  amount  of  alimony  decreed,  which  is  one 
thousand  dollars.     *     *     * 

The  judgment  of  the  Court  below  is,  therefore,  affirmed  with  costs. 

Judgment  affirmed. ^^ 


SHELDON  v.  HOPKINS. 
(Supreme  Court  of  New  York,  1831.    7  Wend.  435.) 

Demurrer  to  declaration.  The  declaration  is  in  debt  on  a  justice's 
judgment  rendered  in  Vermont.  The  judgment  is  averred  to  have 
been  recovered  on,  &c.,  at  Manchester,  in  the  county  of  Bennington, 
and  state  of  Vermont,  before  J.  P.,  Esquire,  one  of  the  justices  of  the 
peace  within  and  for  the  county  of  Bennington,  then  and  still  being 
such  justice,  and  having  full  power  and  competent  jurisdiction  in  said 
cause  by  the  confession  of  the  defendant,  and  that  by  the  considera- 
tion and  judgment  of  the  said  justice,  the  plaintiff  recovered  judgment 
against  the  defendant  for  $171  debt  or  damages  and  $2.50  costs,  &c. 
The  defendant  demurred. 

Nelson,  J.  The  declaration  is  no  doubt  defective  in  not  setting 
forth  facts  sufficient  to  give  jurisdiction  to  the  justice. ^^  The  statute 
giving  jurisdiction  to  the  justice  ought  to  have  been  pleaded.^^     It  is 

84  statement  of  facts  and  part  of  opinion  omitted. 

85  Governor  v.  Ridgway,  12  111.  14  (1850);  State  v,  Leavell,  3  Blackf.  (Ind.) 
117  (1832) ;  State  v.  Votaw,  8  Blackf.  (Ind.)  2  (1846) ;  WTiitney  v.  Spencer,  4 
Cow.  (N.  Y.)  39  (1825) ;    Brown  v.  Stebbins,  4  Hill  (N.  Y.)  154  (1843).  Accord. 

3  8  Spooner  v.  Warner.  2  111.  App.  240  (1878);  Bridge  v.  Ford,  4  Mass.  641 
(1808);  People  v.  Koeber,  7  Hill  (N.  Y.)  39  (1844).  Accord.  Williams  v.  Jones, 
13  M.  &  W.  628  (1845).  Contra. 

37  Cone  V.  Cotton,  2  Blackf.  (Ind.)  82  (1827).  Accord. 


384  PLEADINGS   IN  CONTRACT  ACTIONS  (Part  2 

well  settled  that  the  general  averment  of  jurisdiction  is  not  enough." 
3  Wendell,  267;  6  Id.  438.  The  defendant  must  have  judgment;  leave, 
however,  is  granted  to  the  plaintiff  to  amend  on  payment  of  costs. 


WHITECRAFT  v.  VANDERVER. 

(Supreme  Court  of  Illinois,  1850.     12  111.  235.) 

This  was  an  action  of  debt  brought  in  the  Christian  Circuit  Court,* 
to  recover  a  penalty  under  the  statute  for  cutting  trees.  The  declara- 
tion contains  but  one  count,  which  is  as  follows :  That  they  (the  de- 
fendants) render  unto  the  plaintiff  the  sum  of  eleven  hundred  and 
sixty-six  dollars,  which  they  owe  to  and  unjustly  detain  from  him; 
for  that  whereas  theretofore,  to  wit,  on  &c.  and  from  thenceforward 
continually,  until  the  bringing  of  this  suit,  at  &c.,  the  said  plaintiff  was 
the  owner  of  certain  land  (describing  it)  and  that  the  said  defendants, 
on,  &c.,  and  on  divers  other  days  and  times,  before  the  bringing  of 
the  suit,  did  fell  sixty-eight  elm  trees,  sixty-eight  elm  saplings,  &c., 
&c.,  which  said  trees  and  saplings  theretofore  and  up  to  the  times  of 
felling  the  same,  as  aforesaid,  were  standing  and  growing  upon  the 
land  aforesaid,  belonging  to  the  plaintiff,  as  aforesaid.  By  reason 
whereof,  and  by  force  of  the  statute  in  such  case  made  and  provided, 
an  action  hath  accrued  to  the  said  plaintiff,  to  demand  and  have  of 
and  from  the  said  defendants  a  large  sum  of  money,  to  wit,  the  sum  of 
eleven  hundred  and  sixty-six  dollars,  above  demanded,  yet  &c.,  to 
the  damage  of  the  plaintiff  of  two  hundred  dollars.  To  this  declara- 
tion there  was  a  demurrer  and  joinder,  and  a  plea  of  nil  debet  and  is- 
sue joined  thereon.  The  declaration  was  amended,  and  the  cause 
was  submitted  to  a  jury,  and  a  verdict  was  found  for  plaintiff  for 
$476,  Davis,  Judge,  presiding.  The  cause  was  tried  at  a  special  term 
in  August,  1850.  Motions  for  a  new  trial  and  arrest  of  judgment  were 
made  and  overruled. 

Trumbull,  J.^®  All  the  facts  stated  in  the  declaration  may  be  true, 
and  yet  the  defendants  below  have  committed  no  act  that  would  subject 
them  to  this  action.    It  is  not  alleged  that  they  felled  the  trees  without 

38  Clearly,  in  the  absence  of  even  such  a  general  averment,  the  declara- 
tion is  bad.  Read  v.  Pope,  1  C.  M.  &  R.  302  (1834);  Ellis  v.  White,  25  Ala. 
540  (1854). 

If  the  court  rendering  the  judgment  is  one  of  general  jurisdiction,  no  aver- 
ment of  its  jurisdiction  is  necessary.  Robertson  v.  Struth,  5  Q.  B.  941  (1844: 
foreign  court);  Rae  v.  Hulbert,  17  111.  572  (1856:  foreign  court);  People  v. 
Lane,  36  111.  App.  049  (1S90)  ;  Williams  v.  Preston,  3  J.  J.  Marsh.  (Ky.)  600, 
20  Am.  Dec.  179  (1830:  foreign  court);  Wilbur  v.  Abbot,  58  N.  H.  272  (1878); 
Chemical  Bank  v.  Kellogg,  71  N.  J.  Law,  126,  58  Atl.  397  (1904)  semble; 
Mink  V.  Shaffer,  124  Pa.  280,  290,  16  Atl.  805  (1889:  foreign  court);  Penning- 
ton V.  Gibson,  16  How.  65,  81,  14  L.  Ed.  847  (1853).  Accord.  Kibbe  v.  Kibbe, 
Kirby  (Conn.)  119,  126  (1786)  semble;  Downer  v.  Dana,  22  Vt.  337  (1850). 
Contra. 

3  8  Part  of  the  opinion  omitted. 


Ch.  2)  DEBT  385 

having  first  obtained  permission  so  to  do  from  the  owner  of  the  land, 
nor  even  that  they  did  the  acts  complained  of  with  force  and  arms, 
or  unlawfully. 

The  declaration,  after  setting  forth  the  felling  of  the  trees  on  the 
land  of  the  plaintiff,  alleges,  that  "by  force  of  the  statute  in  such  case 
made  and  provided,  an  action  hath  accrued,  &c."  There  is  no  statute 
giving  an  action  of  debt  in  such  a  case  as  that  stated.  The  words  of 
the  law,  R.  S.  ch.  104,  sec.  1,  are :  "Any  person  who  shall  cut,  fell,  box, 
bore,  or  destroy,  or  carry  away  any  black  walnut,  black,  white,  yellow, 
or  red  oak,  white  wood,  poplar,  wild  cherry,  blue  ash,  yellow  or  black 
locust,  chestnut,  coffee  or  sugar  tree,  or  sapling,  standing  or  growing 
upon  land  belonging  to  any  other  person  or  persons,  without  having 
first  obtained  permission  so  to  do,  from  the  owner  or  owners  of  such 
lands,  shall  forfeit  and  pay  for  such  tree  or  sapling,  so  cut,  felled, 
boxed,  bored  or  destroyed  the  sum  of  eight  dollars."  The  subsequent 
part  of  the  same  sections  prescribes  a  penalty  of  three  dollars  for 
cutting,  &c.,  trees  of  any  other  description  than  those  before  enumer- 
ated. 

The  want  of  permission  from  the  owner  is  a  necessary  ingredient 
to  constitute  the  offence,  and  he  who  would  make  a  party  liable  under 
the  statute,  must  allege  all  the  facts  upon  which  the  statute  creates 
the  penalty.  The  rule  is  well  settled,  that  when  an  action  is  given  by 
statute  which  contains  an  exception  in  the  same  clause  which  gives  the 
right  of  action,  the  plaintiff  must  negative  such  exception  in  his  dec- 
laration, but  if  there  be  a  subsequent  exemption,  that  is  a  matter  of 
defence,  and  the  other  party  must  show  it  to  protect  himself  against 
the  penalty.     1  Ch.  PL  223 ;    Teel  v.  Fonda,  4  Johns.  (N.  Y.)  304. 

Here  the  qualification  of  the  right  of  action,  is  contained  in  the 
very  same  section  and  clause  of  the  statute  which  gives  the  right,  and 
should,  therefore,  have  been  negatived  in  the  declaration.*"     *     *     * 

The  declaration  is  also  objected  to,  because  it  does  not  allege  that  the 
acts  complained  of,  were  done  contrary  to  the  form  of  the  statute.     This 

40  Spieres  v.  Parker,  1  T.  R.  141  (1786) ;  Brinkley  v.  Jacksou,  2  Houst.  (Del.) 
71  (1S59) ;  Chapman  v.  Wright,  20  111.  120  (1S5S) ;  Myers  v.  Carr,  12  Mich. 
63,  71  (1863)  semble;  Gould  v.  Kelley,  16  N.  H.  551,  562  (1845:  case  on  stat- 
ute). Accord. 

So  of  an  exception  in  a  covenant.  Tempany  v.  Bernand,  4  Camp.  20  (1814) ; 
Browne  v.  Knill,  2  B.  &  B.  395  (1821) ;  Vavasour  v.  Oruirod,  6  B.  &  C.  430 
(1827:    debt  on  simple  contract);    Dunn  v.  Dunn,  3  Colo.  510  (1877). 

But  provisos  contained  in  subsequent  sections  need  not  be  noticed.  Brink- 
ley  V.  Jackson,  2  Houst.  (Del.)  71  (1859) ;  :Myers  v.  Carr,  12  Mich.  03,  71  (1SG3) 
semble;  Gould  v.  Kelley,  16  N.  H.  551,  562  (1845)  semble.  The  rule  is  the 
same  where  the  proviso  is  in  the  same  section.  Steel  v.  Smith,  1  B  &  \1 
94  (1817) ;  Myers  v.  Carr,  12  Mich.  63,  71  (1863)  sgmble;  Bennet  v.  Hurd,  3 
Johns.  (X.  Y.)  438  (ISOS);  Teel  v.  Fonda,  4  Johns.  (N.  Y.)  304  (1809);  Hart  v. 
Cleis,  8  Johns.  (N.  Y.)  41  (1811). 

So  of  a  proviso  in  a  covenant.  Gordon  v.  Gordon,  IStarkie,  294  (1S16)  •  La 
Point  V.  Cady.  2  Pin.  (Wis.)  515  (1850). 

See,  also,  cases  cited  above  p.  305,  note. 


386  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

particular  allegation  we  deem  unnecessary,  provided  it  clearly  appears 
from  the  declaration  that  the  action  is  founded  on  a  statute;  Cook  v. 
Scott,  1  Oilman,  333."     *     *     * 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  re- 
manded, with  leave  to  the  plaintiff  below  to  amend  his  declaration. 

Judgment  reversed. 


SECTION  3.— DEFENSES 


FORM  OF  PLEA  OF  NIL  DEBET. 

(Martin,  Civil  Procedure,  385.     Form  50.) 

In  the  Common  Pleas. 
C.  D. "]      And  the  said  C.  D.,  by  E.  F.  his  attorney,  comes  and  defends 
ats.     -the  wrong  and  injury,  when,  &c.,  and  says  that  he  does  not 

A.  B.  J  owe  the  said  sum  of  money  (or  "the  said  sum  of  £ ") 

above  demanded,  or  any  part  thereof,  in  manner  and  form  as  the  said 
A.  B.  hath  above  thereof  complained  against  him,  and  of  this  he  the 
said  C.  D.  puts  himself  upon  the  country,  &c. 


FORM  OF  PLEA  OF  NON  EST  FACTUM. 

(Martin,   Civil  Procedure,  385.     Form  49.) 

In  the  King's  Bench. 

Term, Will.  IV. 

C.  D.  ]       And  the  said  defendant,  by  E.  F.  his  attorney,  comes  and  de- 
vs.     ^  fends  the  wrong  and  injury,  when,  &c.  and  says  that  the  said 
A.  B.  J  indenture  (or  "articles  of  agreement,"  or  "deed  poll,"  as  in  the 
declaration)  is  not  his  deed. 

And  of  this  the  said  defendant  puts  himself  upon  the  country,  &c. 


FORM  OF  PLEA  OF  NUL  TIEL  RECORD. 

(3  Chitty,  Pleading  [lath  Am.  Ed.]   *994.) 

And  the  said  defendant,  by  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  &c.  and  says  that  there 
is  not  any  record  of  the  said  supposed  recovery  in  the  said  dec- 
laration mentioned,  remaining  in  the  said  court  of  our  said  lord  the 

41  Andrew  v.  Hundred,  Yelv.  116  (1608)  semble;  Lee  v.  Clarke,  2  East, 
333  (1803);  Nichols  v.  Squire,  5  Pick.  (Mass.)  168  (1827);  Brown  v.  Hoit, 
Smith  (N.  H.)  53  (1804)  semble;  Cross  v.  U.  S.,  Fed.  Cas.  No.  3,434  (1812) 
Contra. 


Ch.  2)  DEBT  387 

king",  before  the  king  himself,  in  manner  and  form  as  the  said  plaintiff 
hath  above  in  his  said  declaration  alleged,  and  this  the  said  defendant  is 
ready  to  verify.  Wherefore,  he  prays  judgment  if  the  said  plaintiff 
ought  to  have  or  maintain  his  aforesaid  action  thereof  against  the  said 
defendant,  SlC. 


McGAVOCK  V.  PURYEAR. 

(Supreme  Court  of  Tennessee,  1868.    6  Cold.  34.) 

James  O.  Shackelford,  J.,  delivered  the  opinion  of  the  Court.** 
This  is  an  action  of  debt,  brought  in  the  Circuit  Court  of  William- 
son County,  on  a  promissory  note  for  $4,000,  dated  26th  December, 
1861,  due  four  months  after  date,  executed  by  John  McGavock  and 
James  Park,  payable  to  the  order  of  S.  S.  House,  L.  H.  Moseley  and 
J.  W.  Hall.  The  declaration  is  in  the  usual  form ;  to  which  the  de- 
fendant pleaded :  First,  the  g^eneral  issue,  nil  debet ;  second,  that  the 
said  note  was  discounted  by  the  officers  of  the  Planter's  Bank,  at  Frank- 
lin, to  raise  money  to  purchase  horses  and  other  equipments  of  a  regi- 
ment to  be  mustered  into  the  service  of  the  so-called  Confederate  gov- 
ernment; that  said  money  was  loaned  by  the  officers  of  said  bank  for 
the  illegal  purpose  of  raising  troops  to  war  against  the  government 
of  the  United  States,  and  is,  therefore,  void,  etc. ;  that  the  note  was 
transferred  after  maturity,  to  the  plaintiff,  with  a  full  knowledge  of 

purposes  for  which  it  was  borrowed.     Issue  was  taken  on  the  pleas. 
♦     *     * 

Upon  the  trial  of  the  cause.  His  Honor  charged  the  jury:  Third — • 
''That  if  Park  and  others,  by  the  plea,  stated  the  object  of  the  money 
raised  on  the  note,  was  to  aid  and  assist  the  Confederate  States  in  re- 
bellion against  the  government  of  the  United  States,  that  such  alle- 
gation will  not  be  sustained  by  proof,  that  it  was  to  aid  the  State  of 
Tennessee,  or  any  other  body  of  men  in  such  an  illegal  purpose,  but 
that  the  special  character  of  the  illegal  transaction  cannot  be  shown 
under  the  general  issue ;   it  must  be  done  by  special  pleas." 

A  judgment  was  rendered  for  Puryear.  A  motion  for  a  new  trial 
was  overruled,  and  the  record  is  filed  for  error.     *     *     * 

We  think  his  honor  erred  in  the  instruction  in  which  he  ruled  that, 
under  the  plea  of  the  general  issue  in  this  case  evidence  could  not  be 
given  of  the  illegality  of  the  contract.  No  principle  is  more  clearly 
settled  than  that,  under  the  general  issue  in  an  action  of  debt,  any 
matter  that  shows  the  debt  is  not  owing,  or  a  discharge  of  it,  may  be 
given  in  evidence.  Mr.  Chitty,  in  his  work  on  Pleadings,  vol.  1,  page 
481,  says:  "The  defendant  may  give  in  evidence,  under  this  plea, 
every  matter  that  shows  nothing  was  owing,  or  any  other  matter  in  dis- 
charge of  the  debt." 

*2  Part  of  the  opinion  omitted. 


388  PLEADINGS  IN  CONTRACT  ACTIONS  (Part  2 

Such  being  the  settled  rules  of  law  in  pleadings  of  this  character, 
it  is  unnecessary  to  comment  further  upon  the  charge  of  His  Honor.,  in 
which  we  think  he  misapprehended  the  rules  applicable  to  the  admis- 
sibility of  testimony  under  the  pleas  hied  in  this  case. 

The  judgment  must  be  reversed,  and  the  case  remanded.*^ 


OTT  V.  SCHROEPPEL. 

(Supreme  Court  of  New  York,  1848.    3  Barb.  56.) 

Gridley,  J.**  This  is  an  action  of  debt  on  an  award,  and  the  dec- 
laration contains  two  counts.  The  defendant  pleaded  nil  debet  to  the 
whole  declaration ;  four  special  pleas  to  the  first  count,  and  one  to 
the  second.  The  third  and  sixth  pleas  are  respectively  pleas  of  no 
award.  To  these  pleas  the  plaintiff  has  demurred,  and  assigned  as 
one  of  the  causes  of  demurrer  that  the  pleas  amount  to  the  general 
issue. 

I.  The  plea  of  nil  debet  is  an  appropriate  plea  to  an  action  of  debt 
on  an  award,  and  is  the  general  issue,  putting  in  issue  every  allega- 

43  Fant  V.  Miller,  17  Grat.  (Va.)  47,  67  (1866).  Accord. 

So  of  other  defenses  by  way  of  excuse.  Anonymous.  1  Mod.  35  (1669:  evic- 
tion);  Gargan  v.  School  Dist.  No.  15,  4  Colo.  53  (1878:  discharge  of  surety 
before  debt  due  by  death  of  one  principal  obligor) ;  Phoenix  Co.  v.  Munday, 
5  Cold.  (Tenn.)  547,  553  (1868:  false  swearing  by  insured)  ;  Gillespie  v.  Dar- 
win, 6  Heisk.  (Tenn.)  21,  27  (1871:  discharge  of  surety  by  acts  of  creditor); 
Beaty  v.  McCorkle,  11  Heisk.  (Tenn.)  593  (1872:  coverture);  Crews  v.  Bank, 
31  Grat.  (Va.)  348,  358  (1879:  stamp  act);  Keckley  v.  Bank,  79  Va.  458,  462 
(1884:    want  of  consideration  where  consideration  presumed)  semble. 

The  facts  necessary  to  make  a  prima  facie  case  are  in  issue  under  nil 
debet.  Bates  v.  Hunt,  1  Blackf.  (Ind.)  67  (1820);  Dartmouth  College  v. 
Clough,  8  N.  H.  22,  28  (1835);   Brown  v.  Littlefield,  7  Wend.  (N.  Y.)  454  (1831). 

Defenses  in  discharge  may  be  proved  under  nil  debet.  '  Paramour  v.  John- 
son, 12  Mod.  376  (1700:  release)  semble;  Bailey  v.  Cowles,  86  111.  333  (1877: 
accord  and  satisfaction)  semble;  Page  v.  Prentice,  7  Blackf.  (lud.)  322  (1844: 
same  and  payment)  semble;  Stipp  v.  Cole,  1  Ind.  146  (1848:  payment);  Craig 
V.  Whips,  1  Dana  (Ky.)  375  (1833:  payment);  Phoeuix  Co.  v.  Munday,  5  Cold. 
(Tenn.)  547  (1868:  false  swearing  by  insured  after  company  liable);  Welsh 
V.  Lindo,  Fed.  Cas.  No.  17,409  (1808:    former  recovery). 

The  statute  of  limitations  must  be  pleaded  specially.  Chappie  v.  Durston, 
1  Cr.  &  J.  1  (1830);  Smart  v.  Baugh,  3  J.  J.  Marsh.  (Ky.)  363  (1830)  semble; 
Lindo  V.  Gardner,  1  Cranch,  343,  2  L.  Ed.  130  (1803)  ;  Butcher  v.  Hixton,  4 
Leigli  (Va.)  519,  527  (1833)  semble.  Accord.  Anonymous,  1  Salk.  278  (1090) ; 
Draper  v.  Glassop,  1  Ld.  Raym.  153  (1696) ;  Kichards  v.  Bickley,  13  Serg.  & 
R.  (Pa.)  395  (1825)  semble ;  Murdock  v.  Herndon,  4  Hen.  &  M.  (Va.)  200  (1809) 
semble.  Contra. 

But  in  debt  for  a  statutory  penalty  the  statute  of  limitations  may  be  re- 
lied on  under  nil  debet.  T^ee  v.  Clarke,  2  East,  333,  336  (1802) ;  Gebhart  v. 
Adams,  23  111.  397,  76  Am.  Dec.  702  (1860)  semble;  Watson  v.  Anderson, 
Hardin  (Ky.)  458  (1808) ;  Estill  v.  Fox,  7  T.  B.  Mon.  (Ky.)  552,  18  Am.  Dec. 
213  (1828);  Moore  v.  Smith,  5  Greenl.  (Me.)  490,  495  (1829);  Pike  v.  Jenkins, 
12  N.  H.  255  (1841). 

In  a  qui  tam  action  former  recovery  must  be  specially  pleaded,  according 
to  Bredon  v.  Harman,  2  Str.  701  (1720).  So  of  fresh  pursuit  in  debt  for  an 
escape,  according  to  Bonafous  v.  Walker,  2  T.  R.  126,  131  (1787)  semble. 

**  Part  of  opinion  omitted. 


Ch.2)  DEBT  389 

tion  in  the  declaration.  1  Saund.  PI.  &  Ev.  180,  181.  1  Ch.  PI.  (Ed. 
of  1837)  p.  124,  517.  Stanley  v.  Chappell,  8  Cow.  235.  Ex  parte 
Wallis,  7  Cow.  522.  The  plaintiff,  therefore,  is  bound  to'  prove  a  legal 
and  valid  award,  under  the  issue  upon  the  plea  of  nil  debet.  Now  it 
is  an  established  rule  of  pleading  that  when  the  defence  consists  of 
matter  of  fact,  merely  amounting  to  a  denial  of  such  allegations  in 
the  declaration  as  the  plaintiff  would  under  the  second  issue  be  bound 
to  prove  in  support  of  his  case,  a  special  plea  is  bad,  as  unnecessary 
and  amounting  to  the  general  issue.  1  Chit.  PI.  557,  and  cases  there 
cited,  and  cases  cited  in  the  note,  950.  We  see  no  escape,  therefore, 
from  the  conclusion,  that  the  plea  of  no  award,  to  an  action  of  debt 
on  an  award  is  bad,  as  amounting  to  the  general  issue.'*^ 

II.  The  fourth  plea  admits  the  making  of  the  award,  but  avers 
that  on  the  last  day  for  making  it,  the  defendant  requested  the  arbi- 
trators to  deliver  the  award,  but  that  they  neglected  to  do  so.  It  was 
a  condition  of  the  bond  that  the  award  should  be  ready  to  be  deliv- 
ered to  the  parties  on  that  day;  and  it  is  abundantly  established  by 
authority  that  a  neglect  to  deliver'  on  request  disproves  the  allegation 
that  it  was  ready  to  be  delivered  according  to  the  conditions,  on  the 
happening  of  which  the  award  was  to  be  binding.  Cald.  on  Arbit.  200 ; 
Perkins  v.  Wing,  10  Johns.  146;  1  Saund.  Rep.  327,  b,  note  3;  2 
Saund.  Rep.  87,  b,  note  1 ;  3  Saund.  Rep.  190,  note  3 ;  Buck  v.  Wads- 
worth,  1  Hill,  321.  But  it  is  argued  that  this  plea,  though  good  in 
substance,  is  bad  on  special  demurrer,  as  amounting  to  the  general 
issue.  It  is  said  with  some  plausibility  in  support  of  this  argument, 
that  the  fact  which  constitutes  the  gist  of  the  plea,  is  no  more  than  a 
denial  of  a  readiness  to  deliver,  which  readiness  the  plaintiff  must 
establish  afifirmatively,  on  the  trial.  The  answer  to  the  argument  is, 
that  a  readiness  to  deliver  calls  for  no  distinct  proof  from  the  plain- 
tiff, independently  of  the  making  of  the  award;  nor  need  the  fact  be 
averred  in  the  declaration.  See  Bradsey  v.  Clyston,  Cro.  Ch.  541 ;  1 
Saund.  PI  327,  b,  note;  1  Saund.  PI.  &  Ev.  180.  The  plea  therefore 
states  a  new  and  independent  fact,  and  is  not  merely  the  denial  of  a 
fact  which  the  plaintiff  is  bound  to  prove ;  and  in  several  of  the  cases 
cited  above,  it  was  expressly  held  that  the  fact  must  be  pleaded  spe- 
cially, and  that  the  evidence  of  it  could  not  be  otherwise  admitted. 
But  if  the  fact  might  be  given  in  evidence  under  the  plea  of  nil  debet, 
when  the  action  is  brought  upon  the  award,  it  does  not  therefore 
follow  that  a  special  plea  setting  up  this  fact  is  bad.  The  rule  does 
not  prohibit  a  party  from  pleading  specially  all  matters  that  are  ad- 
missible under  a  plea  of  the  general  issue,  but  only  such  as  constitute 
a  mere  denial  of  what  the  plaintiff  is  bound  to  prove  in  the  first 
instance.  The  demurrer  to  this  plea  is  therefore  not  well  taken.*® 
*     *     * 

45  Harlow  v.  Boswell,  15  111.  56  (1853);    Bates  v.  Hunt,  1  Blackf.  (Ind.)  67 
(1820).  Accord.    Compare  1  Chitty,  Pleading  (IStli  Am.  Ed.)  p.  *473. 

40  Matters  in  excuse  may   he  pleaded  specially.     Sarsfield   v.    Witherly,  2 


390  PLEADINGS  IN   CONTRACT  ACTIONS  (Part  2 

The  conclusion  to  which  we  have  come  therefore,  is,  that  the  de- 
murrer to  the  third  and  sixth  pleas,  and  to  the  replication  to  the  sec- 
ond plea  are  allowed ;  and  the  demurrer  to  the  fourth  plea  and  to  the 
replication  to  the  fifth  plea  are  overruled,  and  the  parties  are  respec- 
tively allowed  to  amend  on  payment  of  costs. 


I 


LANDT  V.  McCULLOUGH. 

(Appellate  Court  of  Illinois,  1906.     130  111.  App.  515.> 

The  defendant  in  error  was  the  plaintifif  below  in  an  action  of  debt 
brought  by  him  against  the  plaintiffs  in  error. 

The  suit  was  brought  on  the  following  bond : 

"Know  all  men  by  these  presents,  that  we,  Charles  C.  Landt  and 
Will  H.  Moore,  are  held  and  firmly  bound  unto  James  C.  McCul- 
lough  in  the  penal  sum  of  five  thousand  dollars  ($5,000.00)  lawful  mon- 
ey of  the  United  States,  for  the  payment  of  which,  well  and  truly  to 
be  made,  we  bind  ourselves,  our  heirs  and  legal  representatives,  jointly 
and  severally,  firmly  by  these  presents. 

"In  witness  whereof,  we  have  hereunto  set  our  hands  and  seals  this 
October  12th,  1892. 

"The  condition  of  the  above  obligation  is  such,  that  if,  the  said 
Landt  and  Moore,  or  their  assigns,  shall  fully  comply  with  the  con- 
ditions of  a  certain  lease  dated  March  20th,  1889,  from  said  McCul- 
lough  to  one  James  M.  Stebbins  and  assigned  by  said  Stebbins  to  said 
Landt  and  Moore,  as  to  the  erection  of  buildings  on  a  portion  of  the 
ground  described  in  said  lease,  then  this  obligation  to  be  null  and  void ; 
otherwise  in  full  force  and  effect. 

"Charles  C.  Landt.     [Seal.] 
"Will  H.  Moore.       [Seal.]" 

*******  *:K* 

After  some  additional  pleadings  and  orders  and  stipulations  relating 

thereto,  the  cause  stood  for  trial  on  the  original  declaration  (amended 

by  an  increase  of  the  ad  damnum),  and  five  additional  counts  thereto, 

and  on  a  plea  of  non  est  factum  (unverified)  pleaded  by  the  defendants. 
*     *     * 

Brown,  P.  J.,  delivered  the  opinion  of  the  court. ''^ 
The  three  points  made  by  the  plaintiffs  in  error  in  their  argument 
are: 

First.  The  evidence  was  insufficient  in  law  to  support  the  verdict. 


Vent.  295  (16S8)  semble;  Anonymous,  5  Mod.  18  (IGOl);  Keckley  v.  Union 
Bank,  79  Va.  458,  463  (1SS4)  semble. 

So  of  matters  in  discharge.  Bond  v.  Green,  1  Brownl.  &  G.  75  (1602);  Anon- 
ymous, 5  Mod.  18  (1694);  Hatton  v.  Morse,  1  Salk.  394;  3  Salk.  273  (1702) 
semble:  Bage  v.  Prentice,  7  Blackf.  (Ind.)  322  (1844);  Craig  v.  WMps,  1  Dana 
(Ky.)  375  (1833)  semble. 

47  Parts  of  statement  of  facts  and  opinion  omitted. 


m 


Ch.2)  DEBT  391 

In  support  of  the  first  point  the  argument  is  that  no  proof  of  the 
lease  mentioned  in  the  bond,  nor  any  proof  of  the  breach  of  the  con- 
dition of  the  bond,  having  been  made  by  the  defendant  in  error,  the 
verdict  was  unwarranted.  But  the  answer  is,  that  as  the  only  plea 
in  the  cause  was  non  est  factum,  no  such  proof  was  necessary. 

By  the  common  law  this  plea  in  an  action  of  debt  on  a  specialty  only 
put  in  issue  the  giving  of  the  deed,  and  it  was  not  necessary  for  the 
plaintiff  to  prove  the  averments  or  breaches  contained  in  his  declara- 
tion— the  plea  admitted  all  material  averments.  Chitty  on  Pleading 
(9th  American  Edition)  vol.  1,  p.  483,  note  2;  Gardner  v.  Gardner,  10 
Johns.  (N.  Y.)  47;  hegg  v.  Robinson,  7  Wend.  (N.  Y.)  194. 

This  has  always  been  and  is  now  the  law  of  Illinois.  Prichett  et 
al..  V.  People,  1  Gilman,  525,  p.  530;  Rudesill  et  al.  v.  Jefferson  County 
Court,  85  111.  446;  Smith  v.  Lozano  et  al.,  1  111.  App.  171,  176;  King 
v.  Sea,  6  111.  App.  189,  192;  Sugden  v.  Beasley,  9  111.  App.  71,  73; 
Oberne  v.  Gaylord,  13  111.  App.  30;  Shunick  v.  Thompson,  25  111. 
App.  619,  626;  Osborne  &  Co.  v.  Rich,  53  111.  App.  661,  665. 

No  proof  of. the  signature  of  the  bond  was  required,  for  the  plea 
was  not  verified.    Rev.  St.  c.  110,  §  33.     *     *     * 

The  judgment  of  the  Superior  Court  is  affirmed. 

Afi^rmed.*8 


EDWARDS  V.   BROWN,  HARRIES   &  STEPHENS. 

(Court  of  Exchequer,  1831.     1  Cromp.  &  J.  307.) 

Debt  upon  a  bond  dated  12th  October,  1826.  The  defendant,  Brown, 
suffered  judgment  by  default.  The  bond,  as  set  out  on  oyer,  appeared 
to  be  a  bond  given  upon  a  mortgage  for  £  1800.  to  the  plaintiff'.  It 
recited  that  Brown  was  seised  in  tail  of  the  mortgaged  premises ;  that, 
by  lease  and  release,  of  even  date,  the  premises  had  been  conveyed  to 
make  a  tenant  to  the  praecipe,  that  a  recovery  might  be  suff'ered ;  and 
the  condition  was,  that  if  the  recovery  should  be  suff'ered  in  manner 
and  form  mentioned  in  the  release,  and  so  and  in  such  manner  as  that 
under  and  by  virtue  of  the  recovery  and  of  the  release,  the  premises 
should  be  vested  in  the  plaintiff  in  fee,  according  to  the  true  intent 
and  meaning  of  the  release,  the  bond  should  be  void.     *     *     * 

Stephens  pleaded  non  est  factum.     *     *     * 

48  Rudesill  V.  Jefferson  County  Court,  85  111.  4-16  (1877) ;  Oberne  v.  Gavlord. 
13  111.  App.  30  (1883);  Utter  v.  Vanse,  7  Blackf.  (lud.)  514  (1845);  Stfite  v. 
Fersuson.  9  Mo.  288  (1845)  senible:  Solomon  v.  Evans,  3  McCord  (S.  C.)  274 
(1825).  Accord.  American  Co.  v.  Burlack,  35  W.  Va.  647,  658,  14  S.  E.  319 
(1891)  seinble.  Contra. 

The  rule  is  the  same  in  covenant.  Clark  v.  Harmer,  5  App.  D.  C.  114 
(1895);  Burroughs  v.  Clancy,  53  111.  30  (1SC9);  Sugden  v.  Beaslev,  9  111.  App. 
71  (1881);  Dale  v.  Roosevelt,  9  Cow.  (N.  T.)  307.  312,  315  (1827):  Cooi)er  v. 
Watson.  10  Wend.  (N.  Y.)  202  (1833) ;  Norman  v.  Wells,  17  W>nd.  (N.  Y.)  136,. 
144  (1837);  Goukling  v.  Hewitt,  2  Hill  (N.  Y.)  644  (1842);  Courcier  v.  Graham. 
1  Ohio,  330,  345  (1824);  Denton  v.  Moore,  2  Tenn.  168  (1811). 
Whit.C.L.Pl.— 26 


392  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

At  the  trial,  before  Park,  J.,  at  the  last  summer  assizes  for  the 
county  of  Hereford,  it  appeared,  that  Brown  was  seised  of  the  prem- 
ises in  question  for  life  only,  and  not  in  tail :  so  that,  although  the 
recovery  was  duly  suffered,  it  could  not  vest  in  the  plaintiff  a  fee.  Rus- 
sell, Serjt.,  tendered  evidence  to  prove  that  Stephens  had  been  induced 
by  fraud  to  execute  the  bond,  but  the  learned  Judge  was  of  opinion, 
that  such  evidence  was  not  admissible  under  the  plea  of  non  est  factum. 
The  Jury  found  a  verdict  for  the  plaintiff.     *     *     * 

Bayley,  B.,*^  now  delivered  the  judgment  of  the  Court,  and,  after 
stating  the  pleadings  as  above,  proceeded  thus :  At  the  time  of  the 
trial,  the  defendant,  Stephens,  offered  to  prove  that  he  was  drawn  in 
by  fraud  to  execute  the  bond;  but  the  learned  Judge  being  of  opin- 
ion that  fraud  could  not  be  given  in  evidence  upon  non  est  factum, 
that  evidence  was  rejected;  and  it  is  upon  the  ground  that  such 
rejection  was  improper  that  my  Brother  Russell  obtained  his  rule  nisi 
for  a  new  trial. 

I  agree  with  my  Brother  Russell,  that,  whatever  shews  that  the 
bond  never  was  the  deed  of  the  defendant  may  be  given  in  evidence 
upon  non  est  factum.  But  if  the  party  actually  executes  it,  and  was 
competent  at  the  time  to  execute  it,  and  was  not  deceived  as  to  the 
actual  contents  of  the  bond,  though  he  might  be  misled  as  to  the 
legal  effect,  and  though  he  might  have  been  entitled  to  avoid  the  bond 
by  stating  that  he  was  so  misled,  it  nevertheless  became,  by  the  exe- 
cution, the  deed  of  the  defendant,  and  he  is  not  at  liberty,  upon  the 
plea  of  non  est  factum,  to  say  it  was  not. 

The  rule,  as  laid  down  in  Gilbert's  Evidence,  162,  is  this:  "The 
only  point  in  issue,  and  the  controversy,  on  non  est  factum,  is,  whether 
the  deed  declared  on  be  the  act  of  the  party,  so  that  when  the  act  is 
proved  to  be  done,  the  whole  matter  denied  by  the  defendant  is  proved 
to  the  Jury ;  but  if  there  be  any  other  circumstances  to  destroy  that 
act,  and  avoid  its  binding  force,  that  must  be  shown  to  the  Court, 
that  the  Court  may  judge,  and  not  the  Jury,  whether  they  are  suffi- 
cient to  avoid  that  deed."  And  we  accordingly  meet  with  many  in- 
stances in  which  what  would  avoid  the  deed  and  destroy  its  binding 
force,  both  at  common  law  and  by  statute,  has  been  held  inadmissible 
in  evidence  upon  non  est  factum,  and  other  instances  in  which  it  has 
been  specially  pleaded. 

In  Whelpdale's  Case,  5  Rep.  119,  the  third  resolution  is:  "Where 
a  bond  or  other  writing  is  by  act  of  Parliament  enacted  to  be  void,  the 
party  who  is  bound  cannot  plead  non  est  factum,  but,  in  construc- 
tion of  law,  the  deed  is  to  be  avoided  by  the  party  who  is  bound  by  it, 
by  pleading  the  special  matter,  taking  advantage  of  the  special  mat- 
ter; for  although  the  act  makes  the  bond  or  other  writing  void,  yet 
thereto  the  law  doth  tacitly  require  order  and  manner,  which  the  ob- 
ligor ought  to  follow." 

4  9  Parts  of  statement  of  facts  aud  of  opinion  omitted. 


4 


1 

I 


Ch.2)  DEBT  393 

In  Colton  V.  Goodridge,  Bl.  1108,  the  defendant  was  not  allowed, 
upon  non  est  factum,  to  refer  to  the  condition  of  the  bond,  to  shew 
that  it  was  in  restraint  of  marriage,  and  therefore  void  at  common  law. 

So,  in  Harmer  v.  Rowse,  6  Mees.  &  S.  146,  the  defendant  was  not 
allowed  to  prove,  on  non  est  factum  to  a  bond,  that  it  was  given  to 
stifle  a  prosecution  for  felony,  and  therefore  void  at  common  law. 

In  Thompson  v.  Harvey,  1  Show.  2,  where  the  objection  to  a  bond 
was,  that  it  was  in  restraint  of  trade,  which  is  a  common  law  objection, 
it  was  pleaded  specially;  and  in  Collins  v,  Blantern,  2  Wils.  341,  where 
the  defence  to  an  action  on  a  bond  was,  that  it  was  given  to  suppress 
a  prosecution  for  perjury,  it  was  pleaded  specially;  and  in  this,  and 
the  case  of  Thompson  v.  Harvey,  the  conclusion  of  the  plea  was  not 
et  sic  non  est  factum,  but,  and  so  the  bond  was  void  in  law. 

But  the  authorities  which  come  closest  in  this  case,  and  press  most 
strongly  on  my  mind,  are  the  cases  of  duress  and  threats.  Every 
argument  which  can  apply  to  a  case  where  fraud  is  the  defence,  ap- 
plies equally  where  threats  or  dur.ess  are  the  defence.  The  party  is 
equally  deprived  of  his  free  agency  and  uncontrolled  judgment  in 
either  case.  And  yet,  where  duress  or  threats  are  the  defence,  there 
is  authority  upon  authority  that  they  cannot  be  given  in  evidence  upon 
non  est  factum,  but  must  be  pleaded  specially.  The  rule  I  have  men- 
tioned from  Gilbert's  Evidence,  162,  is  given  as  the  reason  why  a 
man  cannot  give  duress  in  evidence  under  non  est  factum. 

In  1  Hen.  7,  15b,  Keble  lays  it  down,  if  a  man  confess  an  obligation 
to  be  his  deed,  he  shall  not  conclude  non  est  factum,  as  if  he  pleaded 
infancy;  the  same  law  is  where' he  pleads  that  he  made  the  obligation 
by  duress  of  imprisonment. 

So,  in  14  Hen.  8,  28a,  if  a  deed  be  made  by  duress  of  imprisonment, 
the  defendant  ought  to  conclude  to  the  action,  for  it  would  be  a  false 
conclusion  to  say,  et  sic  non  est  factum,  for  it  was  his  deed. 

Again,  if  an  infant  or  a  man  by  duress  make  an  obligation,  they  shall 
demand  judgment  si  actio,  because  the  delivery  of  the  deed  was  not 
void. 

So,  Doctrina  Placitandi,  259,  if  a  feme  covert  make  an  obligation, 
she  may  plead  non  est  factum ;  but  otherwise  it  is  in  case  of  an  infant 
or  of  duress,  for  then  it  is  only  voidable;  and,  therefore,  the  parties 
cannot  plead  non   est  factum,  but  they   shall  say  judgment  si  actio. 

The  second  resolution  in  Whelpdale's  case  is  to  the  same  effect ; 

and  upon  these  authorities  our  opinion  is,  that  the  plea  of  non  est 

factum  in  this  case  did  not  entitle  the  defendant  to  give  the  evidence 

he  oft'ered;   and,  consequently,  that  such  evidence  was  rightly  rejected. 
*     *     *  • 

Rule  discharged.^" 

50  Huston  V.  Williams.  3  Blaokf.  (Tnd.)  170,  25  Am.  Dec.  84  (183.'?)  serable; 
Woolson  V.  Shirley,  6  Dana  (Ky.)  .308  (1S3S):  American  Co.  v.  Burlack,  35 
W.  Va.  647,  GGO,  14  S.  E.  319  (1S91)  semble.  Accord. 

So  of  other  defenses  in  excuse.     Whelpdale's  Case,  5  Co.  119a  (1005:    du- 


394  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

VAN  VALKENBURGH  v.  ROUK. 
(Supreme  Court  of  New  York,  1S15.     12  Johns.  337.) 

This  was  an  action  of  debt  on  a  bill  obligatory,  or  sealed  note,  and 
was  tried  before  Mr.  Justice  Yates,  at  the  Orange  circuit,  in  August, 
1814. 

The  defendant  pleaded  non  est  factum,  and,  at  the  trial,  entered 
into  evidence  to  show  that  the  note  had  been  fraudulently  obtained, 
by  substituting,  in  the  place  of  the  note  which  the  defendant  intended 
to  execute,  one  for  a  much  larger  amount.  To  this  testimony  the 
counsel  for  the  plaintiff  objected,  that  it  was  inadmissible  under  the 
plea;   but  the  judge  overruled  the  objection. 

It  is  unnecessary  to  state  the  testimony,  as  it  is  unnoticed  in  the 
opinion  of  the  Court.  It  appears  from  the  case  to  have  been  of  a 
very  vague  and  indefinite  nature,  consisting  principally  of  loose 
conversations  with  the  plaintiff,  and  none  of  it  looking  directly  towards 
the  species  of  fraud  intended  to  be  proved.  It  was  proved,  on  the 
part  of  the  plaintiff,  that  the  defendant  could  read  writing,  and  wrote 
a  good  hand. 

The  jury  found  a  verdict  for  the  defendant.  The  plaintiff  moved  to 
set  aside  the  verdict,  and  for  a  new  trial :  1.  Because  improper  testi- 
mony was  admitted.  2.  Because  proper  testimony,  offered  by  the 
plaintiff'  was  overruled  by  the  judge.  3.  Because  the  verdict  was 
against  evidence. 

ress)  semble;  Cole  v.  Del  awn,  3  Keble,  228  (1673:  infancy)  semble;  Harmer 
V.  Rowe,  2  Chitty,  334  (1817:  ille.u'ality) ;  Chambers  v.  Games,  2  G.  Greene 
(Iowa)  320  (1849:  failure  of  consideration):  Union  Banli  v.  Ridgely,  1  Har. 
&  G.  (Md.)  324,  41G  (1827:  infancy)  semble;  Bollinger  v.  Thurston,  2  Mill, 
Const.  (S.  C.)  447  (1818:  failure  of  consideration) ;  Tyler  v.  Hand,  7  How. 
573,  583,  12  L.  Ed.  824  (1849:  illesality)  semble.  Accord.  Pigot's  Case,  11  Co. 
2Gb  (1G15 :  alteration  where  bond  sued  on  in  original  form) ;  Thompson  v. 
Rock,  4  M.  &  S.  338  (1815:    illegality).  Contra. 

So  of  excuses  in  covenant.  RatclifC  v.  Pemberton,  1  Esp.  35  (1793 :  rescis- 
sion before  breach);  Stone  v.  Dennis,  3  Port.  (Ala.)  231,  242  (1836:  impossi- 
bility); Holcomb  V.  Canal,  3  111.  228  (1840:  ultra  vires)  semble;  Wilcox  v. 
Cohn,  Fed.  Cas.  No.  17,040  (18G6 :  consent  to  breach) ;  University  v.  Joslyn, 
21  Vt.  52,  64  (1848 :  maintenance)  semble.  Accord.  Dale  v.  Roosevelt,  9  Cow. 
(N.  Y.)  307,  311  (1827:    illegality)  semble.  Contra. 

Coverture  may  be  relied  on  under  non  est  factum.  Debt.  Cole  v.  Delawn, 
3  Keble,  228  (1G73)  semble;  Anonymous,  12  Mod.  609  (1703) ;  Lambert  v.  At- 
kins, 2  Camp.  272  (1809);  Huston  v.  Williams,  3  Blackf.  (Ind.)  170,  176,  25 
Am.  Dec.  84  (1833)  semble.  Covenant.  Anonymous,  6  ]Mod.  230  (1705)  semble; 
Dale  V.  Roosevelt,  9  Cow.  (N.  Y.)  307,  311  (1827)  semble. 

So  of  lunacy.  Debt.  Yates  v.  Bowen,  2  Str.  1104  (1739) ;  Faulder  v.  Silk, 
3  Camp,  126  (1811).  Covenant.  Dale  v.  Roosevelt,  9  Cow.  (N.  Y.)  307,  310 
(1827)  semble. 

Defenses  in  discharge  must  be  specially  pleaded.  Debt.  Wells  v.  Needham, 
2  Lutw.  995  (1697 :  foreign  attachment)  semble;  Bailey  v.  Cowles,  86  111.  333 
(1877:  accord  and  satisfaction)  ;  P'ord  v.  Vandyke,  .33  N.  C.  227  (1850:  pay- 
ment);  Postmaster  v.  Cross,  Fed.  Cas.  No.  11.306  (1822:  discharge  of  surety 
by  acts  of  creditor).  Covenant.  Russell  v.  Fabyan,  28  N.  H.  543,  61  Am. 
Dec.  629  (1854:  payment);  Wilcox  v.  Cohn,  Fed.  Cas.  No.  17,640  (1866:  ac- 
cord and  satisfaction). 


Ch.2)  DEBT  395 

Spencer,  J.,  delivered  the  opinion  of  the  Court.  The  evidence  in 
this  case  looks  towards  a  substitution  of  an  instrument  of  a  larger 
amount,  for  the  one  the  defendant  supposed  he  was  executing.  Had 
it  been  made  out  satisfactorily  that  there  had  been  a  note  drawn  for  a 
smaller  amount,  that  the  defendant  was  defrauded  into  executing  the 
note  in  question,  by  its  substitution  at  the  moment  of  execution,  I 
cannot  perceive  any  objection  to  the  admission  of  such  proof;  and  if 
made  out,  I  think  it  would  avoid  the  instrument  upon  the  issue  of 
non  est  factum. ^^  Chitty  lays  it  down,  that  the  defendant,  on  non 
est  factum,  may  give  in  evidence  that  the  deed  was  void  at  common 
law,  ab  initio ;  as  that  it  was  obtained  by  fraud,  &c.  Chitty,  PI.  479. 
The  fraud  he  refers  to  must  have  been  a  fraud  relating  to  the  execu- 
tion of  the  deed,  for  the  issue  involves  only  the  execution  of  the  in- 
strument. In  the  case  of  an  infant,  iie  must  plead  infancy,  and  can- 
not give  it  in  evidence  on  non  est  factum,  because  the  deed  is  his, 
though  he  is  not  bound  by  it.  A  feme  covert,  having  no  capacity  to 
contract,  is  not  bound  to  plead  coverture.  If  a  deed  be  misread,  or 
misexpounded  to  an  unlettered  man,  this  may  be  shown  on  non  est 
factum,  because  he  has  never  assented  to  the  contract.  So,  if  a  man 
be  imposed  upon,  and  signs  one  paper  while  he  believes  he  is  signing 
another,  he  cannot  be  said  to  have  assented,  and  may  show  this  on 
non  est  factum. 

I  will  not  pretend  to  say  that  there  is  not  a  great  deal  of  technicality 
in  the  application  of  the  rule,  as  to  the  cases  in  which  you  may  give 

51  Huston  V.  Williams,  3  Blackf.  (Ind.)  170,  25  Am.  Dee.  84  (1833)  semble; 
Taylor  v.  King,  6  Muuf.  (Va.)  358,  366,  8  Am.  Dec.  746  (1819)  semble;  Ameri- 
can Co.  V.  Burlack,  35  W.  Va.  647,  660,  14  S.  E.  319  (1891).  Accord.  Evans 
V.  Hudson,  5  Har.  (Del.)  366  (1852).  Contra. 

So  of  any  other  facts  disproving  the  execution  of  the  instrument  alleged. 
Stoytes  V.  Pearson,  4  Esp.  255  (1803 :  escrow,  condition  unperformed)  :  Pow- 
ell V.  Duff,  3  Camp.  181  (1812:  executed  before  fully  written);  Phillips  v. 
Singer  Mfg.  Co.,  88  111.  305.  307  (1878:  obligee  different);  Mix  v.  People.  92 
111.  549  (1879:  terms  different);  Cully  v.  People,  73  111.  App.  501  (1897: 
generally);  Chicago  Co.  v.  Clark,  87  111.  App.  658  (1899:  escrow,  condition 
unperformed);  Huston  v,  Williams,  3  Blackf.  (Ind.)  170,  176,  25  Am.  Dec. 
84  (1833:  drunkenness);  Edelin  v.  Sanders,  8  Md.  118,  131  (1855:  sued  on 
as  altered)  semble;  Ford  v.  Vandyke,  33  N.  C.  227  (1850:  terms  different); 
Lancashire  Co.  v.  Kill,  114  Pa.  248,  254,  6  Atl.  43  (1SS6 :  generally);  Stuart 
V.  Livesay,  4  W.  Va.  45  (1870:    agent  without  authority). 

So  in  covenant,  Mayelston  v.  Palmerston,  2  C.  &  P.  474  (1826:  different 
party);  Holcomb  v.  Canal,  3  111.  228  (1840:  generally);  Agent  v.  Lathrop, 
1  Mich.  438,  445  (18.50:  agent  without  authority);  Dale  v.  Roosevelt,  9  Cow. 
(N.  Y.)  307,  311  (1827:  drunkenness)  semble;  Bank  v.  Houston,  66  W.  Va. 
336,  343,  66  S.  E.  405  (1909:    escrow,  condition  unperformed). 

Apparently  that  one  may  prove  a  defense  under  non  est  factum  does  not 
prevent  him  from  pleading  it  specially.  Huston  v.  Williams,  3  Blackf.  (Ind.) 
170,  25  Am.  Dec.  84  (1833 :  fraud  preventing  execution) :  American  Co.  v. 
Burlack,  35  W.  Va.  047,  659,  14  S.  E.  319  (1891:  special  traverse  of  execution) 
semble.  Accord.    Justices  v.  Sloan,  7  Ga.  31  (1849).  Contra. 

So  in  covenant.  Bank  v.  Ridgely.  1  Har.  &  G.  (.Md.)  .324,  416  (1827:  es- 
crow, condition  unperformed)  semble;  Smith  v.  Justice,  6  Phila.  (Pa.)  234 
(1867:  generally).  Accord.  Tillis  v.  Liverpool  &  L.  &  G.  Ins.  Co.,  46  Fla. 
268,  277,  35  South.  171,  110  Am.  St.  Rep.  89  (1903:    generally).  Contra. 


396  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

evidence  impeaching  the  execution  of  the  instrument,  under  the  plea 
of  non  est  factum,  and  those  in  which  you  may  not.  In  the  present 
case,  the  defendant  was  not  unlettered,  and  there  is  not  sufficient  proof 
to  warrant  the  verdict,  that  there  was  a  substitution  of  one  instru- 
ment for  another.  There  must  be  a  new  trial. 
New  trial  granted. 


GARGAN  et  al.  v.  SCHOOL  DISTRICT  NO.  15. 
(Supreme  Court  of  Colorado,  1S77.    4  Colo.  53.) 

Stone,  J.°^  Goddard  and  Gargan  entered  into  a  written  contract 
with  the  School  District,  appellee,  for  doing  certain  work  in  the  build- 
ing of  a  school  house,  and  to  secure  the  due  performance  of  the  con- 
tract on  their  part,  they,  together  with  Niemeyer  and  Getz,  as  sureties, 
executed  a  bond  to  the  district  in  the  penal  sum  of  one  thousand 
dollars. 

This  action  is  in  debt  on  the  bond,  brought  against  Gargan  and  the 
sureties  aforesaid  (Goddard  having  died  before  performance  of  the 
contract),  the  breaches  assigned  being  the  failure  of  Gargan  and  God- 
dard in  the  life-time  of  the  latter,  and  of  Gargan  afterward,  to  per- 
form certain  of  the  work  specified  in  the  contract,  and  for  unskillful 
performance  of  portions  of  what  was  done,  whereby  damage  accrued, 
etc. 

The  pleas  are:  1st.  Nil  debet;  2d.  Non  est  factum;  3d.  Non-per- 
formance by  plaintifif  of  conditions  as  to  payment;  4th.  Non-per- 
formance as  to  conditions  to  be  performed  by  plaintiff  respecting  the 
foundation  of  the  building;  5th.  Covenants  performed;  6th.  Nul 
tiel  corporation ;   and  7th.  Set  off. 

From  the  view  which  we  take  of  this  case  under  the  state  of  the 
pleadings  presented  by  the  record,  we  do  not  deem  it  necessary  to  ex- 
amine in  detail  all  the  questions  offered  for  our  consideration  by 
counsel  for  appellants  upon  the  very  numerous  assignments  of  error, 
and  the  elaborate  briefs  filed  in  the  cause. 

The  plea  of  nil  debet  interposed  was,  in  this  action,  bad  on  de- 
murrer,^ ^  but  having  been  replied  to,  the  plaintiff  was  thereby  put 
upon  proof  of  every  allegation  in  his  declaration,  and  the  defendants 
were  at  liberty  to  avail  themselves  of  any^  ground  of  defense  which  in 

62  Parts  of  the  opinion  omitted. 

5  3  Robinson  v.  Beilby,  7  Mod.  237  (1734);  Anonymous,  2  Wilson,  10  (1753: 
general  demurrer);  Wooster  v.  Clark,  2  Ark.  101  (1S39) ;  Kilgour  v.  Commis- 
sion, 111  111.  342,  348  (1SS4);  Noel  v.  State,  6  Blackf.  (Ind.)  523  (1843); 
Bradford  v.  Ross,  3  Bibb  (Ky.)  238  (1813);  Butler  v.  Alcus,  51  Miss.  47  (1875); 
English  V.  City.  42  N.  J.  Law,  275  (1880);  Gates  v.  Wheeler,  2  Hill  (N.  Y.) 
232  (1842);  Parkinson  v.  City,  85  Pa.  313  (1878)  semlile;  Sneed  v.  Wister,  8 
Wheat.  COO,  5  L.  Ed.  717  (1823);  Dyer  v.  Cleavelaud,  18  A^t.  241  (184G).  Accord. 


I 

^5 


Ch.2)  DEBT  397 

general  might  be  taken  advantage  of  under  that  plea.'*  1  Chit.  PL 
483. 

This  plea  puts  in  issue  the  existence  of  the  debt  at  the  time  of 
pleading,  and  consequently  any  matter  may  be  given  in  evidence  under 
it  which  shows  that  nothing  was  due  at  that  time,  as  payment,  release 
or  other  matter  in  discharge  of  the  debt.  1  Chit.  PI.  481.  And  hence 
under  issue  made  by  this  plea  as  it  stood,  it  was  competent  for  the 
sureties  to  have  shown  the  death  of  Goddard,  one  of  the  principals 
in  the  bond,  in  discharge  of  any  liability  thereafter.     *     *     * 

The  doctrine  that  whenever  a  surety  becomes  bound  for  the  per- 
formance of  more  than  one  person,  his  obligation  does  not  extend  be- 
yond the  death  or  retirement  of  any  of  those  for  whom  he  has  en- 
gaged to  be  answerable,  is  established  by  an  almost  unbroken  line  of 
decisions,  both  English  and  American,  reaching  back  for  three  quar- 
ters of  a  century.     *     *     * 

As  a  general  rule  such  defense  should  be  pleaded  specially,  and 
on  behalf  of  the  sureties  alone,  but  as  we  have  shown,  under  the  plea 
of  nil  debet  as  it  stood  in  this  case,  the  defense  might  be  made  the 
ground  of  a  proper  motion. 

The  death  of  Goddard  appeared  in  the  evidence  of  the  plaintiff, 
as  well  as  upon  the  face  of  the  declaration,  and  it  was  not,  therefore, 
necessary  for  the  defendants  to  introduce  proof  of  the  fact.  Such 
being  the  case,  the  motion  of  the  defendants  for  a  new  trial  should  have 
been  granted  on  the  ground  that  the  verdict  was  against  the  evi- 
dence.    *     *     * 

The  judgment  of  the  district  court  will  therefore  be  reversed. 

Thatcher,  C.  J.  I  agree  that  the  court  below  erred  in  entering  a 
joint  judgment  against  Gargan,  Niemeyer  and  Getz,  as  the  record, 
properly  construed,  shows  that  only  Niemeyer  and  Getz  appeared  and 
pleaded  to  the  action,  and  for  this  error,  I  think  the  judgment  should 
be  reversed.  In  this  view  Brother  Elbert  concurs.  As  to  the  liability 
of  the  sureties  for  breaches  of  the  building  contract,  occurring  subse- 
quent to  the  death  of  Goddard,  no  opinion  is  at  present  expressed. 

54  Rawlins  v.  Danvers,  5  Esp.  38  (1S03)  semble;  Price  v.  Farrar,  5  111.  App. 
536  (1879);  Miller  v.  Moses,  56  Me.  128,  140  (1868);  Armstrong  v.  Hall.  1  N. 
J.  Law,  178  (1793);  Jansen  v.  Ostrander,  1  Cow.  (N.  Y.)  670,  676  (1824); 
Brubaker  v.  Taylor,  76  Pa.  83  (1874);  Belser  v.  Irvine,  4  McCord  (S.  C.)  380 
(1827) ;  Hughes  v.  Kelly,  2  Va.  Dec.  .588,  30  S.  E.  387  (1898).  Accord.  Crock- 
ett V.  Moore,  3  Sneed  (Tenn.)  145,  149  (1855).  Contra. 

In  Pennsylvania  it  will  not  serve  the  purpose  of  non  est  factum.  Parkin- 
son V.  City,  85  Pa.  313  (1878). 

The  rule  in  debt  on  a  record  is  the  same  as  in  debt  on  a  specialty.  Tate 
V.  Wymond,  7  Blackf.  (Ind.)  240  (1844);  Clark  v.  Mann,  33  Me.  268  (1851); 
Wright  V.  Boynton,  37  N.  11.  9,  18,  72  Am.  Dec.  319  (1858) ;  Rush  v,  Cobbett, 
2  Johns.  Cas.  (N.  Y.)  256  (1801). 


398  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

BUFORD  &  PUGH  v.  KIRKPATRICK. 

(Supreme  Court  of  Arkansas,  1852,     13  Ark.  33.) 

This  was  an  action  of  debt,  brought  by  Buford  &  Pugh,  against 
Kirkpatrick,  on  a  judgment  recovered  by  the  plaintiffs  against  the  de- 
fendant, in  the  "inferior  court  for  the  county  of  Stewart,  in  the  State 
of  Georgia,"  at  February  Term,  1849.  There  was  a  second  count  in  the 
declaration,  upon  an  account  stated. 

The  defendant  pleaded  nil  debet  to  both  counts,  and  nul  tiel  record 
to  the  count  on  the  judgment.  After  demurring  to  the  first  plea,  plain- 
tiffs entered  a  nol.  pros,  as  to  the  second  count  in  the  declaration,  and 
issue  being  made  up  to  the  second  plea,  it  was  submitted  to  the  court. 
The  plaintiffs  read  in  evidence,  a  transcript  of  the  judgment  sued  on, 
the  court  found  for  defendant,  plaintiffs  excepted,  put  the  transcript 
of  record,  and  brought  error.  The  objection  taken  to  the  transcript 
appears  in  the  opinion  of  the  Court. 

Walker,  J.,  delivered  the  opinion  of  the  Court. 

We  do  not  very  readily  perceive  the  grounds  upon  which  the  Cir- 
cuit Court  held  the  record  in  this  case  to  be  insufificient  to  sustain  the 
issue  on  the  part  of  the  plaintiffs.  From  the  argument  of  the  counsel, 
however,  we  may  infer  that  the  objection  was,  that  the  judgment  was 
void  for  the  want  of  service  or  appearance  of  the  defendant  to  that 
action. 

The  return  on  the  writ  is  in  the  following  words :  "Served  the  de- 
fendant by  leaving  a  copy  of  the  original  at  his  most  notorious  place 
of  abode,  July  19,  1848."  It  is  true,  this  would  not  be  a  sufficient  serv- 
ice under  our  statute,  but  it  may,  notwithstanding,  have  been  valid 
under  the  statute  of  Georgia.  The  question  is  not,  however,  whether 
the  service  was  so  defective  as  to  furnish  grounds  for  reversing  the 
judgment  upon  error  or  appeal,  but  whether  the  judgment  is  a  mere 
nullity;  for,  unless  void,  it  is  conclusive  of  the  rights  of  the  parties 
in  that  suit  until  reversed  or  set  aside.  As  a  judgment  of  this  court, 
it  would,  clearly,  only  be  erroneous  and  reversible  on  error,  but,  until 
reversed,  valid  and  obligatory.  Borden  v.  State,  6  Eng.  525.  And 
we  have  held  in  Barkman  v.  Hopkins  et  al.,  6  Eng.  157,  and  May  v. 
Jamison,  6  Eng.  372,  that  the  record  of  a  sister  State  is  entitled  to  the 
same  credit  here,  and  alike  conclusive,  as  if.  rendered  in  the  courts  of 
this  State.  It  is  true  that  judgment  was  taken  upon  constructive  no- 
tice, and  that  the  defendant  failed  to  appear  to  the  action.  In  case  the 
defendant  had  been  a  non-resident  of  the  State  of  Georgia,  he  might, 
by  special  plea,  (as  was  done  in  the  case  of  Barkman  v.  Hopkins,)  have 
questioned  the  sufficiency  of  the  service  and  the  validity  of  the  judg- 
ment. But  this  he  has  not  done,  and  under  the  plea  of  nul  tiel  rec- 
ord, the  court  could  not  look  beyond  the  record,  but  as  we  have  re- 
marked, it  is  to  be  received  as  a  record,  entitled  to  the  same  credit 


1 


Ch.  2)  DEBT  399 

that  the  records  of  our  own  courts  are.  It  was,  in  other  respects,  in- 
formal, but  is,  nevertheless,  the  judgment  of  the  court  of  a  sister  State, 
regularly  certified,  and  corresponding  with  the  declaration.  The  Cir- 
cuit Court  should  therefore  have  received  it  as  evidence  under  the 
issue  of  nul  tiel  record,  and  for  as  much  as  the  court  decided  against 
the  sufficiency  of  the  record,  its  judgment  must  be  reversed,  and  the 
cause  remanded,  to  be  proceeded  in  according  to  law ;  and  with  in- 
structions to  dispose  of  the  issue  at  law,  upon  the  plea  of  nil  debet, 
which,  as  appears  of  record,  remains  in  that  court  undetermined.^^ 


JUDKINS  V.  UNION  MUT.  FIRE  INS.  CO. 

(Supreme  Judicial  Court  of  New  Hampshire,  1859.     37  N.  H.  470.) 

Debt,  upon  a  judgment,  recovered  by  the  plaintiff  against  the  defend- 
ants, before  the  Supreme  Judicial  Court  of  Maine.  The  defendants 
pleaded  Nul  tiel  record,  and  Nil  debet,  with  a  set-off.  To  the  first 
a  replication  was  filed,  and  to  the  second  a  general  demurrer. 

It  appeared  by  the  record  that  the  suit  was  commenced  by  the  plain- 
tiff, a  citizen  of  Maine,  agi:inst  the  defendants,  a  corporation  doing 
business  at  Concord,  in  this  county,  by  summoning  several  persons  as 
trustees,  and  that  no  service  was  made  on  the  defendants.  The  action 
was  entered  August  term,  1854,  and  continued  till  Alarch  term,  1855, 
with  an  order  of  notice  to  the. defendants.  It  did  not  appear  that  the 
order  of  notice  was  complied  with,  but  at  the  March  term,  1855,  the 
record  sets  forth  that  the  defendants  appeared  by  their  attorneys,  and 
the  action  was  continued  until  August  term,  1855,  when  a  trial  by 
jury  was  had,  resulting  in  a  verdict  for  the  plaintiff.    The  defendants 

55  Hunt  V.  Mayfleld,  2  Stew.  (Ala.)  124  (1S29);  Kimball  v.  Merrick,  20 
Ark.  12  (1859) ;  Forsyth  v.  Barnes,  131  111.  App.  467  (1907 :  on  erroneous 
grounds)  semble;  Hindman  v.  Mackall,  3  G.  Greene  (Iowa)  170  (1851);  Shum- 
way  V.  Stillman,  4  Cow.  (N.  Y.)  292,  15  Am.  Dec.  374  (1825)  semble;  Wads- 
worth  V.  Letson,  2  Speers  (S.  C.)  277  (1844).  Accord. 

The  assignment  of  the  judgment  to  the  plaintiff,  where  alleged,  is  not  in 
issue  on  nul  tiel  record.     Marx  v.  Logue,  71  Miss.  905,  15  South  890  (1894). 

That  judgment  varies  from  allegation  is  open  on  nul  tiel  record.  Snoddy 
V.  Maupin,  7  T.  B.  Mon.  (Ky.)  51  (1828)  semble;  Wright  v.  Weisinger,  5  Smedes 
&  M.  (Miss.)  210  (1845)  semble. 

Matters  in  excuse,  not  appearing  from  record,  are  admissible  under  nul 
tiel  record,  according  to  Forsyth  v.  Barnes,  131  111.  App.  467;  Id.,  228  111. 
326,  331,  81  N.  E.  1028  (1907:  coverture);  Mervin  v.  Kumbel,  23  Wend.  (N. 
Y.)  293,  301  (1840:    error  of  judgment  when  available)   semble. 

Matters  in  discharge  are  not  admissible  under  nul  tiel  record.  Mason  v. 
March,  3  Salk.  397  (1700:  writ  of  error  sued  out)  semble;  Owens  v.  Chan- 
dler, 16  Ark.  651  (1856:  payment)  semble;  Palmer  v.  Palmer,  2  Miles  (Pa.) 
373  (1840:    collection  enjoined). 

A  special  plea  denying  judgment  is  bad.  Green  v.  Ovington,  16  Johns.  (N. 
Y.)  55  (1819)  semble. 


400  PLEADINGS   IN   CONTRACT  ACTIONS  (Part  2 

moved  for  a  new  trial,  and  the  motion  was  transferred  to  the  law  term, 
where,  in  June,  1856,  it  was  denied ;  and  thereupon  at  the  August  term, 
1856,  judgment  was  rendered  upon  the  verdict. 

Bell^  J.^^  The  demurrer  to  the  plea  of  nil  debet  brings  before  us 
the  question  decided  by  the  Superior  Court  in  the  case  of  Thurber  v. 
Blackbourne,  in  1818,  1  N.  H.  242;  and  we  are  asked  to  reconsider 
that  decision.  In  that  case  it  was  decided  that  where  it  did  not  appear 
upon  the  record  that  the  court  of  another  State,  by  which  a  judgment 
in  suit  was  rendered,  has  jurisdiction  of  the  person  of  the  defendant,  by 
personal  notice,  or  his  appearance  to  the  action,  the  plea  of  nil  debet 
was  a  good  plea.     *     *     * 

If  all  judgments  rendered  in  the  State  courts,  whether  rendered  with 
notice  or  without,  which  were  made  valid  within  the  State  by  the  local 
statutes,  were  made  equally  effectual  in  every  other  State  by  the  law 
of  the  United  States,  it  might  well  be  contended  that  they  could  be 
denied  abroad,  only  as  they  must  be  at  home,  by  a  plea  of  nul  tiel  rec- 
ord ;  but  if  they  are  binding  and  conclusive  in  other  States,  only  in 
case  they  were  rendered  on  notice,  or  appearance,  there  must  be  some 
other  form  of  pleading  by  which  the  questions  of  notice,  or  appear- 
ance, or  the  jurisdiction  of  the  court,  may  be  raised  and  tried;  and, 
as  has  been  observed,  it  has  never  been  contended  that  the  plea  of  nil 
debet  is  less  suitable  to  raise  these  questions,  than  a  special  plea  in- 
volving the  validity  of  the  judgment. 

In  suits  upon  judgments  strictly  foreign,  the  plea  of  nil  debet  opened 
the  whole  merits  of  the  case  to  examination;  and  if  that  was  a  nec- 
essary effect  of  the  plea,  it  might  well  be  contended  that  it  was  im- 
pliedly forbidden  by  the  law  of  the  United  States,  which  in  effect  de- 
clares that  judgments  of  other  States,  duly  rendered,  shall  not  be  re- 
examined upon  the  merits ;  but  that  is  no  necessary  effect  of  the  plea, 
and  the  courts,  which  have  held  that  plea  to  be  good,'  either  directly  or 
impliedly,  have  all  held,  since  the  case  of  Bissell  v.  Briggs,  9  Mass. 
462,  6  Am.  Dec.  88,  at  least,  that  when  it  was  shown  that  the  judgment 
in  question  was  rendered  upon  due  notice,  or  appearance,,  by  a  court 
of  competent  jurisdiction,  no  examination  of  the  case,  upon  its  merits, 
was  allowed  by  the  act  of  Congress.  Many  cases  may  be  suggested, 
where  the  effect  of  a  judgment  of  another  State  may  be  brought  in 
question,  where  there  is  no  opportunity  to  plead  nul  tiel  record,  or 
any  other  plea,  as  was  the  case  in  McElmoyle  v.  Cohen,  13  Pet.  312, 
10  L.  Ed.  177,  and  yet  where  full  eft'ect  is  given  to  the  law  of  the 
United  States,  by  limiting  the  inquiry  as  to  the  validity  of  the  judg- 
ment to  the  jurisdiction  of  the  court,  as  to  the  subject  matter  and 
the  persons  of  the  parties ;  and  there  is  obviously  no  greater  difficulty 
in  thus  limiting  the  inquiry  upon  the  plea  of  nil  debet  than  where,  as 
in  the  allowance  of  claims  against  an  insolvent  estate,  no  pleadings 

5  6  Part  of  opinion  omitted. 


Ch.  2)  DEBT  401 

are  required.  There  is  no  pretence  to  suggest  that  the  law  of  the 
United  States  is  not  as  effectually  executed,  under  the  plea  of  nil 
debet,  as  it  can  be  under  any  newly  invented  special  plea,  denying  the 
jurisdiction  either  of  the  case  or  the  person. 

That  the  jurisdiction  of  the  court  by  which  a  judgment  is  rendered 
in  both  respects,  may  be  inquired  into,  is  sustained  by  a  great  prepon- 
derance of  authority  in  the  State  courts.  The  results  of  the  later  de- 
cisions throughout  the  country  are  well  stated  by  Perley,  J.,  in  Downer 
V.  Shaw,  22  N.  H.  (2  Fost.)  280.  "The  judgments  of  courts  of  other 
States  of  the  Union  are  foreign,  except  so  far  as  their  character  has 
been  changed  by  and  under  the  constitution  of  the  United  States. 
After  some  fluctuation  of  opinion,  the  general  principle  appears  to  be 
now  well  established,  that  where  the  State  court  has  jurisdiction,  its 
judgment  is  conclusive  in  every  other  State;  and  that  where  the  State 
court  had  no  jurisdiction,  the  judgment  is  inoperative  beyond  the  lim- 
its of  the  State  where  it  was  recovered.  The  record  is  prima  facie 
evidence  of  any  fact  therein  distinctly  stated,  that  may  be  necessary 
to  give  the  court  jurisdiction;"  and  he  refers  to  the  able  opinion  of 
C.  J.  Shaw,  of  Massachusetts,  in  Gleason  v.  Dodd,  4  Mete.  335,  where 
it  was  held,  upon  a  full  consideration  of  the  authorities,  that  a  judg- 
ment of  another  State  is  not  entitled  to  full  faith  and  credit  under  the 
constitution  and  laws  of  the  United  States,  unless  the  court  had  juris- 
diction of  the  parties  as  well  as  of  the  cause,  and  the  defendant  may 
impeach  such  judgment  by  proof  that  he  had  no  legal  notice  of  the  suit, 
and  never  appeared  therein  and  submitted  to  the  jurisdiction  of  the 
court,  either  in  person  or  by  authorized  attorney.  As  to  any  fact  which 
is  necessary  to  give  the  court  jurisdiction,  the  judgment  is  not  con- 
clusive. It  is  prima  facie  evidence  only,  and  may  be  traversed  and  con- 
tested by  counter  proof.  The  same  positions  are  supported  by  the 
learned  opinion  of  Paige,  P.  J.,  in  Noyes  v.  Butler,  6  Barb.  (N.  Y.) 
613,  and  in  numerous  authorities  cited  in  these  cases  and  elsewhere. 
Reference  has  already  been  made  to  the  recent  cases  in  the  Supreme 
Court  of  the  United  States. 

The  case  of  Thurber  v.  Blackbourne,  is  supported  by  the  decisions 
in  this  State  during  the  period  of  forty  years  since  its  decision.  Whit- 
tier  V.  Wendell,  7  N.  H.  257,  sustains  it  so  far  as  it  holds  that  a  judg- 
ment rendered  in  another  State,  without  notice,  or  an  appearance,  must 
be  regarded  as  a  nullity  here;  and  the  fact  that  a  party  was  an  in- 
habitant here,  and  was  never  notified  of  the  suit,  or  appeared,  or  an- 
swered to  the  action,  might  well  be  pleaded  in  bar  of  the  action,  and 
the  same  facts  must  be  equally  fatal  to  its  validity,  when  it  is  attempted 
to  be  set  up  as  a  defence  under  a  brief  statement.  Rangely  v.  Webster, 
11  N.  H.  299,  and  Downer  v.  Shaw,  before  cited,  distinctly  support 
the  same  positions,  which  are  also  recognized  in  Morse  v,  Presby,  25 
N.  H.  (5  Fost.)  303,  in  Eaton  v.  Badger,  33  N.  H.  237,  and  in  Wright 
V.  Boynton,  37  N.  H.  9,  72  Am.  Dec.  319. 


402 


PLEADINGS   IN   CONTRACT   ACTIONS 


(Part  2 


All  these  decisions,  and  every  decision  which  holds  that  the  want  of 
jurisdiction,  as  to  the  parties,  may  be  shown  under  any  form  of  plead- 
ing whatever,  strike  at  the  foundation  of  the  early  decisions  in  the 
United  States  court,  that  nil  debet  is  not  a  sufficient  plea. 

Upon  these  views,  the  demurrer  must  be  overruled."^ 

5  7  Hiiidman  v.  Mackall,  3  G.  Greene  (Iowa)  170  (1S51) ;  Bissell  v.  Brings, 
9  Mass.  462,  4C0,  6  Am.  Dec.  88  (1813)  semble;  Hall  v.  WilliaDis,  6-  Pick. 
(Mass.)  232,  24G,  17  Am.  Dec.  356  (1828)  semble ;  Wright  v.  Boynton,  37  N.  H. 
9,  IS,  72  Am.  Dec.  319  (1858).  Accord.  Hensley  v.  Force,  12  Ark.  756  (1852) ; 
Launing  v.  Shnte,  5  N.  J.  Law,  778  (1820);  Evans  v.  Tatem,  9  Serg.  &  R, 
(Pa.)  252,  259,  11  Am.  Dec.  717  (1828);  Mills  v.  Duryee,  7  Cranch,  481,  3  L. 
Ed.  411  (1813);  Hampton  v.  McCouuel,  3  Wheat.  234,  4  L.  Ed.  378  (1818). 
Contra. 


Ch.  3)  COVENANT  i03 

CHAPTER  III 
COVENANT 


DOUGLAS  V.  HENNESSY. 

(Supreme  Court  of  Rhode  Island,  1SS7.    15  R.  I.  272,  10  Atl.  583.) 

Stiness,  J,^  The  plaintiff  sues  in  an  action  of  covenant  upon  a 
bond,  alleging  as  a  breach  that  the  defendant  has  neither  performed 
the  condition  nor  paid  the  whole  nor  any  part  of  the  penal  sum.  The 
defendant  pleaded  non  est  factum  and  a  plea  of  performance.  After 
verdict  for  the  plaintiff,  the  defendant  moved  in  arrest  of  judgment, 
upon  the  ground  that  an  action  of  covenant  will  not  lie  upon  this  bond. 
Although  actions  of  covenant  upon  an  ordinary  bond  with  defeasance 
are  not  common,  yet  they  are  not  without  authority  to  support  them. 
The  difficulty  in  such  cases  lies  in  finding  a  promise  in  the  instrument. 
In  this  case,  upon  other  counts  in  the  declaration,  the  court  has  decided 
that  the  recital  of  an  agreement  in  a  bond,  upon  which  the  obligation 
may  be  defeated,  is  not  equivalent  to  a  covenant  to  perform  the  agree- 
ment. Douglas  V;  Hennessy,  Index  Z,  31,  15  R.  I.  272,  7  Atl.  Rep.  1. 
So  in  Hathaway  v.  Crosby,  17  Me.  448,  cited  by  the  defendant,  the 
court  found  that  the  bond  was  strictly  a  bond  of  defeasance,  and  not 
a  covenant  to  perform  the  act  recited  in  the  condition.  The  action  was 
in  debt.  A  statute  provided  that  in  actions  upon  bonds  with  a  penalty, 
with  a  condition  which  provides  for  the  performance  of  some  covenant 
or  agreement,  the  jury  may  assess  the  damages  sustained  by  breaches 
of  the  condition  thereof.  Hence  the  court  held  that,  as  there  was  no 
covenant  to  perform  the  condition,  the  damages  for  its  breach  should 
not  have  been  assessed  by  a  jury.  If  the  breach  of  the  covenant  sued 
upon  is  simply  an  omission  to  do  the  act,  by  the  performance  of  which 
the  Bond  might  become  void,  an  action  of  covenant  will  not  lie;  for  in 
such  cases  there  is  no  promise  under  seal  to  do  it.  Such  was  the  case  of 
Powell  v.  Clark,  2  N.  J.  Law,  *518.  But  in  the  present  case  the  cove- 
nant sued  on  is  the  promise  to  pay,  which  is  claimed  to  lie  in  the  words, 
"to  which  payment  well  and  truly  to  be  made  I  bind  myself,"  etc.  The 
question,  then,  is  whether  these  words  import  a  covenant  to  pay. 

In  Anon.,  3  Leon.  119,  it  was  held  that  the  words,  "I  am  content  to 
give,"  etc.,  "did  amount  to  as  much  as  'I  promise'  to  pay,"  etc.,  and 
that  either  debt  or  covenant  would  lie. 

Norrice's  Case,  Hardr.  178,  sustained  an  action  of  covenant  on  the 
words,  "I  oblige  myself  to  pay  so  much  money  at  such  a  day,  and  so 
much  at  another  day." 

1  Statement  of  facts  and  part  of  opinion  omitted. 


I 


404  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

March  v.  Freeman,  3  Lev.  383,  was  an  action  of  debt  on  a  sealed  bill. 
The  court  says:  "In  every  case  where  a  covenant  is  to  pay  a  certain 
sum,  the  party  may  have  either  debt  or  covenant  for  the  money." 

In  Hill  v.  Carr,  1  Ch.  Cas.  294,  frequently  cited  upon  this  point,  the 
chancellor.  Lord  Nottingham,  remarks :  "And  a  covenant  will  lie  on  a 
bond,  for  it  proves  an  agreement." 

In  2  Sedg.  Dam.  (7th  Ed.)  263,  the  learned  author  says :  "A  bond 
undoubtedly  proves  an  agreement;  but  is  the  agreement  proved,  the 
one  stated  in  the  penalty,  to  pay  the  money  for  which  the  obligor  de- 
clares himself  bound,  or  in  the  condition?"  If  there  be  no  agreement 
in  the  condition,  it  would  seem  necessarily  to  follow  that  the  only  agree- 
ment possible  is  an  agreement  to  pay  the  penalty. 

In  U.  S.  V.  Brown,  1  Paine,  422,  Fed.  Cas.  No.  14,670,  the  action 
was  covenant  on  bond,  conditioned  upon  the  faithful  performance  of 
the  duties  of  an  office.  The  court  remark  that  covenant  might  proba- 
bly be  maintained  upon  the  penalty  of  the  bond,  if  the  breach  was 
properly  assigned,  because  it  contained  an  acknowledgment  of  indebt- 
edness and  a  promise  to  pay,  and  the  breach  would  be  the  non-payment 
of  the  money ;  but,  as  the  breach  alleged  was  misfeasance  in  office,  an 
action  of  covenant  would  not  lie. 

Hill  V.  Rushing,  4  Ala.  212,  was  an  action  of  covenant  on  an  attach- 
ment bond,  alleging  as  breaches  that  the  defendants  had  not  paid  the 
penalty  nor  prosecuted  the  action.  It  was  held  that  the  action  could  be 
maintained. 

State  V.  Woodward,  8  Mo.  353,  was  covenant  on  a  sheriff's  bond, 
alleging  two  breaches  of  the  condition,  followed  by  an  averment  that 
the  defendants  had  not  paid  the  penalty.  The  court  says :  "It  is  clear 
that,  by  the  common  law,  an  action  of  covenant  was  a  concurrent  rem- 
edy with  debt  on  a  single  bill  obligatory,  or  a  penal  bond  subject  to  be 
defeated  by  the  performance  of  conditions.  In  such  an  action  the 
breach  of  covenant  would  be  the  non-payment  of  the  debt  in  the  one 
case;  in  the  other  the  non-payment  of  the  penalty."  As  the  breaches 
assigned,  however,  were  breaches  of  the  condition,  it  "was  held  that 
covenant  would  not  lie.    See,  also,  Taylor  v.  Wilson,  27  N,  C.  214, 

We  think  these  authorities  are  sufficient  to  support  the  conclusion 
that  an  action  of  covenant  may  be  maintained  on  the  promise  to  pay, 
which  the  words  of  the  bond  import.     *     *     * 

Motion  overruled.^ 

2  To  the  eases  cited  by  the  court  add  Lee  v.  State,  22  Ark.  231  (18G0). 
Accord.  McLaughlin  v.  Hutchins,  3  Arlv.  207,  214  (1841);  Abrams  v.  Kouuts, 
4  Ohio,  214  (1829).  Contra. 

That  covenant  will  lie  for  a  "sum  certain,"  not  the  penalty  of  a  penal  bond, 
see,  in  addition  to  cases  cited  by  the  court,  Jackson  v.  Waddill,  1  Stew.  (Ala.) 
579  (182S)  semble;  Clark  v.  Harmer,  5  App.  Cas.  (D.  C.)  114,  119  (1S95); 
Hedges  v.  Gray,  1  Blaokf.  (Ind.)  210  (1822)  semble;  Outtoun  v.  Dulin,  72 
Md.  536,  20  Atl.  134  (1800);  Potts  v.  Toint  Pleasant  Land  Co..  49  N.  J.  Law, 
411,  8  Atl.  109  (1887);  Hall  v.  Stewart,  12  Pa.  211  (1849).  See,  also,  Ames 
In  2  Harv.  Law  Rev.  56. 


Ch.  3)  COVENANT  405 

VAN  SANTWOOD  et  al.  v.  SANDFORD. 

(Supreme  Court  of  New  York,  1815.     12  Johus.  197.) 

This  was  an  action  of  covenant.  Tlie  declaration  contained  four 
counts.  The  fourth  count,  that  certain  differences  having  arisen  be- 
tween the  plaintiff's  and  one  Isaac  Newton,  they,  on  the  22d  of  March, 
1814,  entered  into  articles  of  agreement,  in  the  words  following:  (Set- 
ting forth  the  agreement  to  submit  to  arbitration  verbatim.)  "And 
hereupon  the  said  defendant,  on  the  24th  day  of  March,  in  the  year 
aforesaid,  entered  into  a  guaranty,  covenant,  and  agreement,  in  the 
words  and  figures  following,"  to  wit:  (Setting  forth  the  agreement  of 
the  defendant  verbatim ;)  and  which  concluded  in  the  following  words  : 
"Signed  and  sealed  the  24th  day  of  March,  1814.  Stephen  Sandford. 
[L.  S.]"  And  by  which  the  defendant  guarantied  the  performance 
of  the  award  of  the  arbitrators  on  the  part  of  Newton,  to  the  amount 
of  800  dollars.  The  plaintiff's,  in  this  Court,  then  state  an  award  of 
the  arbitrators,  that  Newton  should  pay  to  them  680  dollars  and  36 
cents,  in  two  days  thereafter,  and  notice  of  the  award  to  Newton,  and 
to  the  defendant,  that  neither  of  them  had  paid  the  money ;  and  that 
the  defendant  had  not  kept  his  said  covenant  and  guaranty  so  by  him 
made,  &c. 

To  this  count  there  was  a  demurrer  and  joinder. 

Spencer,  J.,  delivered  the  opinion  of  the  Court.  The  demurrer  to 
the  fourth  count  is  well  taken :  the  action  is  covenant,  and  it  cannot  be 
maintained  but  on  a  deed.  The  only  averment  or  allegation  of  a  deed 
is,  "and  hereupon  the  defendant,  on  the  24tli  of  March,  in  the  year 
aforesaid,  entered  into  a  guaranty,  covenant,  and  agreement  in  the 
words  and  figures  following;"  Then  the  agreement  is  set  out  in  hasc 
verba,  with  a  conclusion,  that  it  was  signed  and  sealed  with  the  name 
of  the  defendant  and  the  locus  sigilli,  purporting  to  be  a  literal  oyer 
of  the  agreement. 

It  must  appear  that  the  contract  was  under  seal,^  and  the  law  will 
not  intend  that  it  was  sealed,  unless  it  be  expressly  averred  to  be  so ; 
and  though  the  bond  or  deed,  upon  oyer,  recite,  "in  witness  whereof 
we  have  hereunto  set  our  hands  and  seals,"  yet  that  does  not  amount 
to  an  averment,*  but  that  the  party  must  show  that  the  bond  or  deed 
was  actually  sealed  by  the  other.  These  principles  will  be  found  in 
Cable  V.  Vaughan,  1  Saund.  291,  note  1,  where  all  the  cases  are  care- 
fully and  accurately  collected.  There  are  some  words  of  art,  such  as 
indenture,  deed,  or  writing  obligatory  which,  of  themselves,  import  that 

3  Southwel  V.  Brown,  Cro.  Eliz.  571  (1597) ;  ISIoore  v.  Jones,  2  Ld.  Rami. 
1536  (172S);  Pierson  v.  Piersou,  6  N.  J.  Law  168  (1822);  Bilderback  v.  Pouuer, 
7  N.  J.  Law,  61  (1823) ;  Macomb  v.  Thompson,  14  Johns.  (N.  Y.)  207  (1817). 
Accord. 

4  Moore  v.  Jones,  2  Ld.  Raym.  1536  (1728) ;  Hays  v.  Lasater,  3  Ark.  565 
(1841).  Accord. 


I 


406  PLEADINGS   IN   CONTRACT   ACTIONS  (Part  2 

the  instrument  was  sealed;  ^  but  if  it  be  alleged  that  J.  S.  by  his  cer- 
tain writing,*'  demised  or  covenanted/  without  averring  that  it  was 
sealed,  the  Court  will  not  intend  that  the  writing  was  sealed.  Cro.. 
Eliz.  571,  Ld.  Raym.  2537;  8  Com.  Dig.  Fait.  (A.  2.)  Pleader,  2  W. 
9,  14. 

In  the  case  of  Warren  v.  Lynch,  5  Johns.  244,  this  Court  decided, 
that  a  scrawl  for  a  seal,  with  an  (L.  S.),  was  not  a  seal,  and  deserved 
no  notice;  and  that  calling  a  paper  a  deed  will  not  make  it  one,  if  it 
want  the  requisite  formalities.  The  oyer  of  the  contract,  therefore,  set 
out  in  the  count  under  consideration,  can  have  no  effect ;  for  we  cannot 
tell  that  the  original  differs  from  it,  or  possesses  any  of  the  properties 
of  a  seal. 

The  other  objections  taken  by  the  defendant's  counsel  are  not  ten- 
able, but  it  is  not  now  necessary  to  consider  them,  as  the  count  is  bad 
for  the  reasons  assigned. 

Judgment  for  the  defendant,  with  leave  to  amend  on  the  usual 
terms.^ 


CHEWNING  et  al.  v.  WILKINSON. 
(Supreme  Court  of  Appeals  of  Virginia,  1S9S.    95  Ya.  667,  29  S.  E.  680.) 

Harrison^  J.  This  action  of  covenant  was  brought  upon  the  fol- 
lowing paper: 

"Whereas,  H.  R.  Pollard,  substituted  trustee  for  P.  H.  Adams,  with 
the  consent  of  A.  J,  Chewning  and  C.  R.  Sands  has  paid  me  the  sum  of 
eight  hundred  dollars  (800),  which  sum  has  been  applied  as  a  credit 
on  my  claim  .against  P.  H.  Adams  (I  holding  a  second  lien  on  the  prop- 
erty sold  by  Chev/ning  &  Sands  June  13,  1891),  and  which  amount  was 
applied  towards  the  payment  of  several  past-due  notes  held  by  the 
Planters'  National  Bank,  Richmond,  Virginia,  and,  together  with  the 
past-due  interest  and  fees,  amounting  to  the  sum  of  (5,062.81),  this 
amount  of  eight  hundred  dollars  was  deducted  and  allowed  me  with 
the  consent  of  the  above-named  first  lien  holders,  and  at  the  suggestion 
of  P.  H.  Adams,  when  it  should  have  been  applied  towards  the  pay- 

5  Penson  v.  Hodges,  Cro.  Eliz.  737  (1600:  writing  obligatory:  debt);  Ash- 
more  V.  Rypley,  Cro.  Jac.  420  (1017:  same);  Atkinson  v.  Coatsworth,  1  Str. 
512  (1714:    indenture).  Accord.     Perkins  v:  Reeds,   S  Mo.  33   (1843).  Contra. 

6  Southwel  V.  Brown,  Cro.  Eliz.  571  (1597);  Moore  v.  Jones,  2  Ld.  Raym. 
1530  (1728).  Accord. 

7  Havs  V.  Lasater,  3  Ark.  565  (1841);  Wineman  v.  Ilughson,  44  111.  App. 
22  (1892).  Accord. 

8  If  a  deed  be  averred,  delivery  need  not  be  expressly  averred.  Brown  v. 
Hemphill,  9  Port.  (Ala.)  206  (1839);  Auditor  v.  WoodrufC,  2  Ark.  73,  82,  33 
Am.  Dec.  368  (1839) :  Boyer  v.  Sowles.  109  Mich.  481,  67  N.  W.  530  (1S96). 
Accord.     Sprowl  v.  Lawrence,  33  Ala.  674,  692   (1859).  Contra. 

Signing  need  not  be  alleged.  Kidd  v.  Beckley,  64  W.  Va.  80,  60  S.  B. 
1089  (1908). 


Ch.3)  COVENANT  407 

ment  of  the  debt  of  the  first  lien  holders,  who  were  A.  J.  Chewning  and 
C.  R.  Sands : 

"Now,  therefore,  I  hereby  bind  myself,  my  heirs  and  assigns,  to  pay 
or  make  good  any  balance,  not  exceeding  the  sum  of  eight  hundred 
dollars  ($800),  that  may  be  due  the  said  Chewning  &  Sands,  as  the 
first  lien  creditors  of  P.  H.  Adams  as  aforesaid,  after  the  exhaustion  of 
all  the  securities  and  the  sale  of  all  the  property  of  P.  H.  Adams  which 
the  said  Chewning  &  Sands  may  have  as  security  for  the  payment  of 
said  debt.  I  hereby  waive  the  benefit  of  my  homestead  exemption,  as 
to  this  obligation.  Witness  my  hand  and  seal  this  first  day  of  July, 
1891.  E.  Wilkinson.     [Seal.]" 

The  declaration  avers  that  a  balance  of  $1,286.06  is  due  the  plaintififs, 
as  the  first  lien  creditors  of  P.  H.  Adams,  after  the  exhaustion  of  all 
the  securities  and  the  sale  of  all  the  property  of  P.  H.  Adams  which 
they  have  as  security  for  the  payment  of  their  debt. 

The  defendant  relied  upon  the  pleas  of  "conditions  performed"  and 
"covenants  not  broken."  The  whole  of  the  evidence  of  the  defendant 
was  directed  to  showing  that  before  the  paper  sued  on  was  executed 
the  plaintifl^s  had  received  from  the  sale  of  the  Adams  property  $1,000, 
which  had  not  been  credited  upon  their  prior  lien,  but  had  been  im- 
properly applied  to  another  debt;  that  if  the  $1,000  had  been  credited, 
as  it  should  have  been,  upon  the  debt  of  the  plaintiffs  secured  in  the 
deed  of  trust,  the  defendant  would  owe  nothing  upon  the  undertaking 
sued  on. 

No  jury  was  demanded,  and  all  questions  of  law  and  fact  were  sub- 
mitted to  the  court,  upon  consideration  whereof  the  court  held  that  the 
defendant  was  entitled  to  the  credit  claimed,  ascertained  that  the  true 
amount  due  the  plaintiffs  was  $92.54,  and  gave  judgment  accordingly. 
Thereupon  the  plaintiffs  moved  the  court  to  set  aside  its  judgment,  and 
instead  thereof  to  enter  judgment  in  their  favor  for  $800  and  interest, 
upon  the  ground  that  under  the  pleadings  in  the  case  the  defendant 
could  not  show  that  he  was  entitled  to  the  credit  allowed  by  the  court, 
and  that  the  evidence  did  not  show  that  the  defendant  was  entitled  to 
any  such  credit. 

This  motion  was  overruled,  a  bill  of  exceptions  taken,  and  the  case 
brought  to  this  court. 

The  covenant  sued  on  is  affirmative,  and  therefore  the  plea  of  "con- 
ditions performed"  was  proper.  There  being  no  negative  covenant  in 
the  obligation,  the  plea  of  "covenants  not  broken"  was  badly  pleaded. 
The  plea  of  "covenant  performed"  can  only  be  supported  by  evidence 
which  shows  that  the  defendant  has  performed  his  covenant,  and  not 
by  evidence  showing  that  his  own  performance  was  excused  by  the  act 
of  the  plaintiff  or  any  other.  1  Bart.  Law  Prac.  §  125 ;  Fairfax  v. 
Lewis,  2  Rand.  (Va.)  20;  Scraggs  v.  Hill,  37  W.  Va.  706,  17  S.  E.  185. « 

9  Aldridge  v.  Warner,  2  Port.  (Ala.)  92,  98  (1835);  Jones  v.  Johnson,  10 
Humph.   (Teun.)    184   (1849);    Rangier  v.   Morton,  4   Watts   (Pa.)   2G5    (1835); 

Whit.C.L.Pl.—       27 


408 


PLEADINGS  IN  CONTRACT  ACTIONS 


(Part  2 


The  evidence  does  not  sustain  the  plea  of  covenants  performed.  The 
defendant  should  have  filed  a  special  plea  setting  forth  the  fact  relied 
on,  that  the  plaintiffs  had  failed  to  credit  their  debt  with  $1,000  prop- 
erly applicable  thereto,  which  credit  would  have  left  nothing  due  from 
the  defendant,  as  an  excuse  for  the  nonperformance  of  his  covenant. 
1  Bart.  Law  Prac.  §  125. 

Our  conclusion  is,  therefore,  that  the  judgment  of  the  circuit  court 
must  be  set  aside,  and  a  new  trial  awarded  the  plaintiffs,  with  leave 
to  the  defendant  to  file  such  pleas  as  he  may  be  advised  will  put  in  is- 
sue the  defense  upon  which  he  relies. 


Martin  v.  Hammon,  8  Pa.  270  (1848);  Zents  v.  Legnard,  70  Pa.  192  (1872). 
Accord.     Roosevelt  v.  Fulton,  7  Cow.  (N.  Y.)  71  (1827).  Contra. 

So  of  evidence  that  defendant  did  not  make  the  covenant.  Farmers'  & 
Mechanics'  Turnpike  Co.  v.  McCuUough,  25  Pa.  303  (1855);  Hogan  v.  Car- 
land,  5  Yerg.  (Tenn.)  283  (1833). 

So  of  evidence  of  an  affirmative  defense.  Kincaid  v.  Brittaln,  5  Sneed 
(Tenn.)  119,  125  (1857);  Scraggs  v.  Hill,  37  W.  Va.  706,  715,  17  S.  E.  185  (1893) 
semble. 

In  Beardsley  v.  Knight,  4  Vt.  471,  477  (1832),  it  was  held  that  under  a 
denial  of  the  breach  of  the  covenant  defendant  could  prove  that  plaintiff, 
who  was  evicted,  was  not  assignee  of  the  convenantee. 


PART  III 

PRINCIPLES  OF  GENERAL  APPLICATION 


CHAPTER  I 
CONCERNING  SUBSTANCE 


SECTION  1.  —DAMAGE 


TERRELL  v.  McDANIEL. 

(Constitutional  Coiut  of  South  Carolina,  ISIS.     1  Nott  &  McC.  343.) 
Action  of  covenant  on  a  deed.     After  verdict   for  plaintiff  there 
was  a  motion  in  arrest  of  judgment  on  the  ground  that  plaintiff  had 
not  alleged  any  special  damage  which  he  had  sustained  by  reason  ot 
the  nonperformance  of  the  covenant  by  defendant.^ 

NoTT,  J.  Damages  are  either  general  or  special.  General  damages 
are  such  as  the  law  presumes  to  have  accrued  from  the  wrong  com- 
plained of.  Special  damages  are  such  as  the  party  actually  sustained, 
and  are  not  implied  by  law.  1  Chitty  on  Pleadings,  385.  Such  damages 
as  may  be  presumed  necessarily  to  result  from  the  breach  of  the  con- 
tract need  not  be  stated  in  the  declaration.  The  law  also  presumes  some 
damages  to  result  from  a  breach  of  contract,  and  therefore  special 
damages  need  not  be  alleged.  But  where  the  plaintiff  expects  to 
recover  special  damages,  he  must  state  them  specially  and  circum- 
stantially in  order  to  apprise  the  defendant  of  the  facts  intended  to  be 
proven,  or  he  will  not  be  permitted  to  give  evidence  of  such  damages 
on  the  trial.  1  Chitty,  332.  The  general  rule  is,  that  it  is  sufficient 
to  assign  the  breach  in  the  words  of  the  contract.  Id.  326.  An  omis- 
sion to  set  forth  any  special  damage  may  deprive  the  plaintiff  of  the 
benefit  of  testimony,  to  which  he  would  otherwise  have  been  entitled; 
but  it  is  not  a  good  ground  in  arrest  of  judgment,  except  in  cases 
where  the  special  injury  is  the  gist  of  the  action;  as  in  an  action  of 
slander  for  words  not  in  themselves  actionable.^     In  such  cases,  un- 

1  The  statement  of  facts  is  abbreviated. 

2  Pollard  V.  Lvon,  91  U.  S.  22.5,  236,  23  L.  Ed.  30S  (1875:  slander) ;  Swain 
&  Son  V.  Chicago,  etc.,  Co.,  252  111.  622,  97  N.  E.  247,  38  L.  R.  A.  (N.  S.)  763 
(1911:  private  action  for  public  nuisance).  Accord.  Treusch  v.  Kamke,  63 
Md.  274  (1SS5  :  negriigence) ;  Swan  v.  Tappan,  5  Cush.  (Mass.)  104  (1S49  :  libel) ; 
Hurst  V.  Detroit  City  Railway,  S4  Mich.  539,  48  N.  W.  44  (1S91 :  wrongful 
death).  (409) 


410  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

less  the  special  damage  is  set  forth,  there  appears  no  cause  of  action 

on  the  face  of  the  declaration. 

The  motion  in  this  case  must  be  refused.^ 

Justices  CoLCOCK,  Chejves  and  Johnson  concurred. 


JACKSONVILLE  ELECTRIC  CO.  v.  BATCHIS. 

(Supreme  Court  of  Florida,  1907.     54  Fla.  192,  44  South.  933.) 

Action  by  Rose  Batchis  against  the  Jacksonville  Electric  Company. 
Judgment  for  plaintiff,  and  defendant  brings  error.     Reversed. 

Whitfield,  J.*  On  January  11,  1906,  the  defendant  in  error  filed 
in  the  circuit  court  for  Duval  county  a  declaration  alleging  that  on 
December  2,  1905,  the  Jacksonville  Electric  Company  was  operating  a 
certain  street  car  in  Jacksonville,  and  on  that  day  the  plaintiff  was 
a  passenger  on  said  car ;  that  plaintiff  gave  notice  to  the  conductor  to 
stop  the  car,  which  the  conductor  did,  and,  after  said  car  had  stopped, 
plaintiff  arose  from  her  seat  and  proceeded  to  the  door  to  leave  the 
car,  and,  when  plaintiff  got  near  the  door,  the  car,  without  signal  or 
notice,  started  again,  and,  on  the  conductor  again  signaling  to  stop, 
the  car  was  by  the  carelessness  and  negligence  of  the  motorman  in 
operating  stopped  suddenly  with  a  jerk,  and  by  reason  of  said  jerk 
the  plaintiff  was  thrown  over  the  back  of  one  of  the  seats,  inflicting 
upon  her  several  internal  injuries,  which  caused  her,  and  still  causes 
her,  great  pain  and  suffering,  to  the  special  damage  of  the  plaintiff  in 
the  sum  of  $150  for  medical  attendance,  $100  for  board  for  herself 
and  nurse,  $25  for  medicines  and  attendance,  $50  for  rent  of  her  place 
of  business,  wiiich  she  was  compelled  to  keep  closed  during  her  con- 
finement in  her  room  for  two  weeks,  $20  for  wages  to  servant  em- 
ployed by  her  at  her  place  of  business,  and  in  the  further  sum  of  $4,- 
655  for  injuries  sustained  by  her  and  the  pain  and  suffering  she  had 
endured,  and  plaintiff  claims  $5,000  damages.  There  was  a  plea  of 
not  guilty.  The  plaintiff  recovered  judgment  for  $1,000.  A  motion 
for  new  trial  was  overruled.  The  defendant  excepted,  and  took  writ 
of  error. 

The  declaration  alleges  several  internal  injuries  to  the  plaintiff  which 
caused  her  great  pain  and  suffering,  to  her  special  damage,  in  (1)  medi- 
cal attendance;  (2)  board  for  plaintiff  and  nurse;  (3)  medicine  and 
attendance ;  (4)  rent  for  plaintiff's  place  of  business ;  (5)  servant  hire 
at  plaintiff's  place  of  business;  (6)  injuries  sustained  and  pain  and 
suffering  endured — making  a  total  of  $5,000  claimed  as  special  dam- 

3  The  authorities  are  dividecl  upon  the  question.  See,  for  example,  Terre 
Haute,  etc.,  Co.  v.  Peoria,  etc.,  Co.,  182  111.  501,  55  N.  E.  377  (1899) ;  Mullaly  v. 
Austin,  97  Mass.  30  (1SG7).  Accord.  Gould  v.  Allen,  1  Wend.  (N.  Y.)  182 
(1828) ;  James  &  Mitchell  v.  Adams,  16  W,  Va.  245,  257  (1880).     Contra. 

4  A  portion  of  the  opinion  is  omitted. 


Ch.  1)  CONCERNING  SUBSTANCE  411 

ages.  There  is  no  allegation  of  general  damages  to  the  plaintiff  as  the 
result  of  defendant's  negligence  beyond  the  total  amount  of  the  dam- 
ages above  alleged.  Consequently  the  plaintiff  is  confined  to  the  spe- 
cial damages  alleged.  Damages  should  not  be  recovered,  no  matter 
how  fully  proven,  unless  there  is  an  appropriate  allegation  of  the 
damage  sustained.  Evidence  outside  of  the  issues  made  by  the  plead- 
ings should  be  excluded  upon  proper  steps  duly  taken  for  its  exclu- 
sion. See  Atlantic  Coast  Line  R.  Co.  v.  Crosby,  53  Fla.  400,  43  South. 
318,  text  334. 

Such  damages  as  the  law  holds  to  be  the  direct,  natural,  and  neces- 
sary result  of  the  injury  complained  of  may  be  recovered  under  a 
general  allegation  of  damage,  for  the  reason  that  the  defendant  is 
presumed  to  know  the  damages  that  directly  and  necessarily  result 
from  the  negligence,  and  consequently  will  not  be  taken  by  surprise 
when  evidence  of  such  damage  is  admitted.  Special  damages  are  such 
as  are  not  the  necessary,  but  the  direct,  natural,  and  proximate,  result 
of  the  injury  complained  of;  and  the  defendant  is  not  presumed  to 
know  of  them.^  Therefore  such  special  damages  should  be  specifically 
alleged,  unless  they  are  fairly  included  in  other  damages  stated,  or  un- 
less the  law  infers  them  from  the  facts  alleged.  Evidence  of  injuries 
that  are  not  the  natural  and  proximate  consequence  or  result  of  the 
negligence  alleged  should  not  be  admitted. 

Under  the  allegations  of  the  declaration  of  special  damages  sustained 
by  the  plaintiff,  testimony  as  to  amounts  paid  by  the  plaintiff  as  rent 
for  her  place  of  business,  which  she  was  compelled  to  keep  closed  dur- 
ing her  confinement  in  her  room  for  two  weeks  as  the  proximate  result 
of  the  injury  complained  of,  was  properly  admitted. 

Testimony  as  to  the  loss  of  plaintiff's  earnings  in  her  occupation  be- 
cause of  the  injury  was  admitted  over  an  objection  by  the  defendant 
that  "there  is  no  allegation  in  the  declaration  in  regard  to  loss  of  busi- 
ness." 

If  the  loss  to  plaintiff  of  earnings  in  her  occupation  was  a  direct, 
natural,  and  necessary  result  of  the  injury  complained  of,  so  as  to 
be  covered  by  an  allegation  of  general  damages,  there  is  no  general 
allegation  of  damages  in  excess  of  the  special  damages  claimed,  and 
such  damages  are  not  specifically  alleged.  Loss  of  earnings  cannot 
fairly  be  included  in  any  damage  stated,  and  cannot  be  clearly  inferred 
from  any  facts  alleged  in  the  declaration.  The  allegations  of  damage 
because  of  injuries  and  pain  and  suft'ering  clearly  refer  to  injuries  to 
the  person,  and  not  to  pecuniary  losses.  Loss  of  earnings  is  not  fairly 
included  in  or  plainly  inferable  from  the  allegation  of  damages  for  rent 
paid  for  plaintift"'s  place  of  business  which  sh-e  was  compelled  to  keep 
closed  during  her  confinement  in  her  room  for  two  weeks.  The  ob- 
jection to  testimony  as  to  losses  by  plaintiff  of  earnings  in  her  occupa- 

5  For  numerous  cases  reco^rniziug  and  applying  this  rule,  see  5  Ency.  PL 
&  Pr.  717-721;   2  Sutherland  ^on  Damages  (3d  Ed.)  1161,  note  1. 


412  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

tlon  should  have  been  sustained  in  view  of  the  allegations  of  the  dec- 
laration.    *     *     * 

The  court  charged  the  jury  that  among  the  elements  to  be  embraced 
in  the  measure  of  damages  was  plaintiff's  "occupation  and  the  losses 
she  incurred  in  her  earnings ;  and,  in  considering  any  losses  incurred 
in  her  earnings,  the  jury  have  the  right  to  consider  plaintiff's  occupa- 
tion, the  time  of  the  year  and  its  bearing  on  her  business,  her  average 
earnings  in  her  occupation,  her  loss  by  being  compelled  to  abandon 
her  business,  and  all  the  elements  set  forth  in  the  evidence  going  to 
prove  her  loss."  This  charge  was  duly  excepted  to,  and  it  is  assigned 
as  error. 

Instructions  to  juries  should  be  confined  to  the  issues  made  by  the 
pleadings.  See  Walker  v.  Parry,  51  Fla.  344,  40  South.  69;  Hinote 
v.  Brigman  &  Crutchfield,  44  Fla.  589,  33  South.  303. 

As  there  was  no  allegation  of  general  damages  in  addition  to  the 
allegations  of  special  damages,  and  as  there  is  no  allegation  of  special 
damages  to  the  plaintiff  for  loss  of  earnings  in  her  occupation,  and 
as  such  special  damages  are  not  fairly  included  in  any  damages  alleged 
and  cannot  be  clearly  inferred  from  any  facts  alleged  in  the  declara- 
tion, the  jury  should  not  have  been  instructed  that  the  measure  of 
damages  embraced  plaintiff's  occupation  and  the  losses  she  incurred 
in  her  earnings,  and  that  all  the  elements  set  forth  in  the  evidence  go- 
ing to  prove  her  loss  might  be  considered  in  determining  the  damages. 

The  evidence  did  not  warrant  the  giving  of  the  charges  requested 
by  the  defendant  and  refused  by  the  court. 

The  judgment  is  reversed,  and  a  new  trial  awarded. 

ShacklEFOrd,  C.  J.,  and  Cockre;ll,  J.,, concur. 

Taylor,  HockKR,  and  Parkhill,  JJ.,  concur  in  the  opinion. 


COREY  V.  BATH. 

(Supreme  Judicial  Court  of  New  Hampshire,  1S57.  35  N.  H.  530.) 
Case.  The  declaration,  in  one  of  the  actions,  alleged  that  whereas 
there  was,  on  the  8th  day  of  July,  1855,  a  certain  public  highway  in 
said  town  of  Bath,  which  highway  the  said  inhabitants  of  said  town 
were  then,  and  still  are,  bound  to  keep  and  maintain  in  good  and  suffi- 
cient repair,  and  free  from  all  obstructions,  and  which  highway  leads 
from  the  foot  of  the  Gilman  hill,  so  called,  up  along  the  western  bank 
of  the  Ammonoosuc  river,  in  said  Bath,  by  the  farm  on  which  Oliver 
Corey  and  Ira  G.  Corey  live,  to  the  town  of  Lisbon ;  and  whereas,  on 
said  8th  day  of  July,  1855,  said  plaintiff  was  riding  in  a  wagon  in 
company  with  his  wife  and  child  on  said  highway,  when,  by  reason  of 
the  defect,  insufficiency  and  want  of  repair  of  said  highway,  about 
one-quarter  of  a  mile  above  said  Oliver  Corey's  place,  and  while  slowly 
travelling  in  the  travelled  part  of  said  highway,  he,  the  said  plaintiff, 
together  with  his  wife  and  child,  were  thrown  from  his  wagon  with 


J 


Ch.  1)  CONCERNING  SUBSTANCE  413 

great  force  and  violence,  and  he,  the  said  plaintiff,  and  the  said  child 
were  greatly  injured  and  damaged  thereby. 

In  the  other  action  by  Corey  and  his  wife,  the  declaration  was  sim- 
ilar, except  that  the  injury  was  alleged  to  have  been  done  to  the  wife, 
as  follows :  "When,  by  reason  of  the  defect,  insufficiency  and  want  of 
repair  of  said  highway,  said  Sally  Corey,  the  said  James  R.  Corey's 
wife,  was  thrown  with  great  force  and  violence  out  of  said  wagon, 
together  with  her  said  husband  and  her  said  child,  and  she,  the  said 
Sally  Corey,  was  greatly  injured  and  damaged  thereby." 

The  defendant  filed  a  confession  in  common  form,  admitting  dam- 
ages to  the  amount  of  ten  dollars. 

The  plaintiff,  with  his  wife  and  child,  were  riding  on  Sunday,  for 
the  purpose  of  visiting  his  parents,  who  lived  about  twelve  or  fourteen 
miles  from  his  residence.  The  defendants  contended  that  the  plaintiff 
could  not  recover,  if  it  appeared  that  he  was  travelling  on  Sunday  for 
the  purpose  merely  of  making  a  social  visit  to  his  friends ;  but  the 
court  overruled  the  objection,  and  instructed  the  jury  that  in  this  case 
the  plaintiff  might  recover  in  the  same  manner  as  if  he  had  been  in- 
jured in  travelling  on  any  other  day. 

The  defendant  also  contended  that  the  plaintiff,  under  this  declara- 
tion, could  not  be  allowed  to  prove  what  particular  injuries  he  sus- 
tained by  the  accident,  none  being  specified  in  the  declaration ;  and 
also  that  the  plaintiff  could  not  be  allowed  to  prove  in  what  particu- 
lars the  road  was  defective  and  out  of  repair,  none  being  specified  in 
the  declaration. 

The  court  overruled  both  objections,  and  admitted  evidence  to  show 
the  particular  injuries  received,  and  the  particulars  in  which  the  road 
was  defective  and  out  of  repair,  so  far  as  they  contributed  to  the  acci- 
dent. 

The  jury  found  a  verdict  for  the  plaintiff,  which  the  defendants 
moved  to  set  aside  on  account  of  the  foregoing  rulings  and  instructions 
of  the  court;  and  also  moved  in  arrest  of  judgment,  because  the 
declaration  does  not  specify  in  what  respects  the  road  was  out  of  re- 
pairs; nor  in  what  particulars  the  plaintiff  was  injured;  nor  allege 
any  special  damage  to  the  plaintiff;  nor  that  the  plaintiff'  was  in  the 
exercise  of  ordinary  care  at  the  time  of  the  accident;  nor  that- the 
injury  was  caused  by  any  defect,  insufficiency  or  want  of  repair  in 
that  part  of  the  highway  mentioned  in  the  declaration  which  was  in 
the  town  of  Bath. 

Pe;rIvI:y,  C.  J.6  *  *  *  Another  objection  made  to  the  declara- 
tion is  that  it  does  not  allege  special  damages.  To  maintain  his  action 
the  plaintiff  must  show  that  he  has  sustained  a  special  damage  within 
the  meaning  of  that  term,  as  it  is  used  in  the  statute.  The  gist  of  the 
action  is  the  individual  damage  which  the  plaintiff  has  received ;  and 
the  injury  itself,  which  is  the  cause  of  action,  is  not  a  special  damage, 

6  Portions  of  the  opinion  are  omitted. 


414  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

in  the  sense  of  that  term,  as  it  is  commonly  used  in  the  law  of  plead- 
ing and  evidence.  The  injury  to  the  plaintiff  is  the  substantial  fact 
charged  as  the  foundation  of  the  action ;  and  neither  that,  nor  the 
natural  and  uniform  effects  of  the  injury,  are  special  damages,  in  the 
legal  and  technical  meaning  of  the  term;  but  special  damages  in  that 
sense  are  such  as  are  caused  by  some  incidental  fact,  or  by  the  peculiar 
situation  and  circumstances  of  the  party.  To  take  a  case  which  has 
been  sometimes  put  for  an  illustration:  If  the  plaintiff  should  declare 
in  trespass  that  the  defendant  broke  and  entered  his  close,  and  there 
discharged  a  gun,  he  could  not,  without  stating  more,  prove  on  trial 
that  he  had  there  a  decoy  for  ducks,  and  that  the  ducks  were  scared 
away  by  the  discharge  of  the  gun.  The  plaintiff's  damage  from  the 
disturbance  of  his  decoy  would  not  be  the  uniform  consequence  of 
discharging  a  gun  on  his  land,  and  therefore  the  particular  facts  must 
be  specifically  stated,  to  show  how  the  special  damage  was  caused.  So 
in  declaring  against  a  turnpike  corporation  for  an  injury  to  the  plain- 
tiff's horse,  caused  by  a  defect  in  their  road,  the  plaintiff  could  not, 
without  a  special  statement,  recover  damages  for  being  detained  by 
the  accident,  so  that  he  lost  the  next  train  of  railroad  cars,  and  was 
obliged  to  remain  on  expense  at  a  tavern ;  because  the  detention  and 
consequent  expense  would  not  imiformly  follow  as  the  natural  and 
uniform  effects  of  such  an  injury,  but  would  appear  to  be  the  neces- 
sary consequences,  when  the  situation  of  the  plaintiff  was  shown  which 
caused  the  special  damage. 

In  cases  like  this,  the  injury  which  the  plaintiff  has  received  in 
his  person  or  property  is  the  fact  charged  as  the  foundation  of  the 
suit;  and  if  that  is  sufficiently  described,  according  to  the  general 
rules  of  pleading,  the  natural  consequences  of  the  injury,  such  as  fol- 
low from  it  without  the  aid  of  any  incidental  fact  or  any  peculiar 
circumstances,  are  not  special  damages,  and  may  be  recovered  without 
specification. 

Does  this  declaration  sufficiently  describe  the  injury  or  damage 
complained  of?  It  is  not  enough  to  allege  that  the  road  was  out  of 
repair,  and  the  plaintiff  was  violently  thrown  from  his  carriage.  All 
this  would  not  amount  to  an  actual,  substantial  injury,  and  a  legal 
damage  under  the  statute.  The  declaration  must  show,  further,  that 
the  plaintiff  suffered  a  substantial  injury,  and  the  general  nature  of  it, 
whether  it  was  to  his  person  or  his  property;  and,  if  to  his  property, 
to  what  property.  But  it  is  not  necessary  that  the  declaration  should 
give  a  detailed  statement  of  the  bodily  injuries  received,  or  set  out 
the  particulars  of  the  damage  done  to  any  article  of  his  property.  If 
the  injury  was  to  his  person,  it  is  enough  to  say  generally  that  he  was 
greatly  injured  in  his  body,  or  that  he  suffered  a  great  bodily  injury; 
so,  if  the  injury  was  to  some  piece  of  his  property,  say  to  his  carriage, 
it  would  be  sufficient  to  allege  that  the  carriage  was  greatly  damaged, 
without  describing  the  particular  injuries  to  the  different  parts.     In 


i 


Ch.  1)  CONCERNING  SUBSTANCE  415 

Read  v.  Chelmsford,  16  Pick.  (Mass.)  128,  the  averment  was  that  the 
plaintiff  was  greatly  injured  in  his  body,  without  any  more  particular 
description  of  the  injuries  received;  and  this  agrees  with  the  rule  of 
pleading  that  prevails  generally  in  similar  cases.  In  an  action  on  the 
case  for  running  down  and  damaging  the  plaintiff's  barge,  the  injury 
may  be  stated  generally.  2  Chitty's  PI.  283.  So  in  a  suit  to  recover 
damages  for  breach  of  a  warranty  on  the  sale  of  a  horse.  Whether 
the  action  is  assumpsit  or  case,  it  is  enough  to  allege  generally  that 
the  horse  was  not  sound,  but  unsound.  2  Chitty's  PI.  101,  217;  War- 
ren V.  Litchfield,  7  Greenl.  (Me.)  63.  In  cases  where  a  general  state- 
ment would  have  answered,  if  the  plaintiff  unnecessarily  states  par- 
ticulars, he  will  be  held  to  prove  them  as  stated,  unless  the  whole 
particular  statement  can  be  rejected,  and  leave  the  declaration  suffi- 
cient. Bristow  V.  Wright,  Douglas,  664.  And  general  pleading,  where 
it  is  allowable,  is  for  that  reason  in  most  cases  thought  to  be  the  safer. 

The  declaration  in  one  of  these  suits  alleges  that  the  plaintiff  and 
his  wife  and  child  wxre  thrown  from  his  wagon  with  great  force  and 
violence,  and  he  and  the  child  greatly  injured  and  damaged  thereby. 
Is  this  to  be  taken,  after  verdict,  as  a  sufficient  averment  that  the 
injury  which  the  plaintiff  received  was  bodily,  and  to  his  person?  We 
diink  it  is.  The  description  of  the  accident  and  of  the  manner  in 
which  the  injury  happened  would  make  it  likely  that  a  bodily  injury 
would  be  received;  and  there  is  nothing  stated  from  which  it  can  be 
intended  that  any  injury  or  damage  of  another  character  could  befall 
the  plaintiff.  It  is  not  alleged  that  the  carriage  was  overset,  or  the 
horse  thrown  down,  or  anything  else  of  a  kind  that  could  cause  damage 
or  injury  to  his  property.  When  it  is  said  that  he  and  the  child  were 
thrown  with  great  force  and  violence  from  the  wagon,  and  both  greatly 
injured,  the  natural  and  ordinary  meaning  of  the  language  would  be 
that  the  injury  to  himself  and  the  child  was  bodily.  Any  other  con- 
clusion would  do  violence  to  the  plain  and  obvious  meaning  of  the 
statement.  It  amounts  in  substance  to  an  allegation  that  the  plaintiff 
received  a  great  bodily  injury,  and  that  is  sufficient,  without  setting 
out  the  particulars  of  the  injury.     *     *     * 

Judgment  on  the  verdict.^ 

7  Ryerson  v.  Marseillis,  16  N.  J.  Law,  450  (1863),  apparently  contra.  In 
defamation  also  by  the  great  weight  of  authority,  the  special  damage  must 
be  alleged  with  great  particularity.  See  cases  cited  in  5  Encyc.  PI.  &  Pr.  7G7- 
7G9.  Thus,  where  loss  of  customers  is  asserted,  it  is  usually  necessary  to  set 
out  the  names  of  the  customers  lost,  unless  it  is  impossible  to  do  so  or  their 
numbers  are  so  great  as  to  make  it  impracticable.  See  Trenton  Mutual,  etc., 
Co.  V.  Perrine,  23  N.  J.  Law,  402,  414,  57  Am.  Dec.  400  (1873). 

Where  injury  is  claimed  as  the  result  of  a  series  of  acts,  it  is  not  necessary 
to  allege  that  damase  followed  from  each  act  of  the  series.  Oliver  v.  Perkins, 
92  INlich.  304,  52  N.  W.  609  (1S92). 

It  is  not  necessary  to  allege  the  amount  of  damage.  Mattingly  v.  Darwin, 
23  111.  618  (1860) ;  Groves  v.  Dodson.  8  Yerg.  (Tenn.)  101  (1835 :  after  verdict) ; 
Digges  V.  Norris,  3  Hen.  &  M.  (Va.)  268  (1808). 


416 


PRINCIPLES   OP   GENERAL  APPLICATION 


(Part  3 


ALLEN  V.  SMITH. 
(Supreme  Court  of  New  Jersey,  1S31.     12  N.  J.  Law,  159.) 

The  CHir.F  Justice;  ®  delivered  the  opinion  of  the  court. 

This  cause  comes  before  us  on  a  writ  of  error  to  the  Court  of  Com- 
mon Pleas  of  the  county  of  Essex.  The  action  instituted  in  that  court 
is  upon  a  bond  given  to  the  plaintiff  below,  Moses  Smith,  as  sheriff  of 
that  county,  by  Daniel  K.  Allen,  one  of  the  defendants  and  the  others 
as  his  sureties,  with  condition  that  Allen,  who  had  been  arrested  and 
was  in  custody  under  a  capias  ad  satisfaciendum,  should  keep  within 
the  bounds  of  the  prison  of  the  county  until  discharged  by  due  course 
of  law ;  and  the  alleged  breach  of  the  condition  is  that  he  had  not  so 
kept  himself,  but  that  he  had  walked  out  of  and  departed  from  the 

said  bounds.    A  verdict  and  judgment  were  rendered  for  the  plaintiff. 
*     *     * 

5.  The  fifth  error.  Another  bill  of  exceptions  was  taken  to  the 
charge  of  the  court  to  the  jury  in  relation  to  the  damages. 

The  declaration  in  this  action  is  not  merely  upon  the  penal  part  of 
the  bond,  but  sets  out  the  condition  and  contains  an  assignment  of 
the  breach  in  pursuance  of  the  fifth  section  of  the  act  concerning  ob- 
ligations, Rev.  Laws  1821,  p.  304,  which  has  been  taken  almost  literally 
from  the  statute  of  8th  and  9th  Wm.  3.  It  concludes  thus  :  "By  means 
whereof  and  by  force  of  the  statute,  etc.,  an  action  hath  accrued  to  the 
said  Moses  Smith,  sheriff  as  aforesaid,  to  demand  and  have  of  and 
from  the  said  D.  K.  Allen,  W.  Cobb  and  R.  Carrick  the  said  sum  of 
$3105.58  [the  penalty]  above  demanded.  Yet  the  said  D.  K.  Allen, 
etc.,  have  not  as  yet  paid,  etc.,  the  said  sum  of  $3105.58,  but  neg- 
lected, etc.,  to  his  damage  $50.  And  therefore,"  etc.  The  defendants 
prayed  the  court  to  instruct  the  jury  that  they  could  .not  assess  the  dam- 
ages at  a  greater  sum  than  $50 ;  but  the  court  refused  so  to  charge,  and 
did  charge  that  the  damages  laid  in  the  conclusion  of  the  declaration 
were  merely  nominal,  and  that  the  jury  had  a  right  to  exceed  that 
amount   in   the   assessment.^ 

This  charge  to  the  jury  was,  I  think,  unexceptionable.  The  dam- 
ages they  were  about  to  assess  were,  not  merely  the  damages  for  the 
detention  of  the  debt,  but,  according  to  the  provision  of  the  statute, 
for  the  breach  which  the  plaintiff  had  assigned  and  which  he  had 
proved.  The  damages  mentioned  in  the  conclusion  of  the  declaration 
are  for  the  detention  of  the  debt,  pro  detentione  debitis ;  and,  however, 
in  assessing  damages  on  that  account,  the  jury  ought  not  to  exceed 
the  amount  laid  by  the  plaintiff,  the  same  limit  is  not  prescribed  to 
them,  when  making  diverso  intuitu,  an  assessment  for  the  breach.     It 

8  A  portion  of  the  opinion  is  omitted. 

»  That  the  plaintiff  is,  in  actions  sounding  in  damages,  limited  to  the  dam- 
ages alleged  in  the  declaration,  .see  llohlins  v.  Kimble,  Bulst.  49  (IGll),  Daven- 
port V.  Bradley,  4  Conn.  309  (1S22),  and  numerous  other  cases  cited  in  5  Encyc. 
ri.  &  Pr.  712. 


Ch.  1)  CONCERNING  SUBSTANCE  417 

is  true  that  Chitty  directs  "the  amount  of  the  penalty  or  upwards" 
to  be  inserted  in  the  conclusion  of  the  declaration.  2  Chitty,  156,  note. 
And  Archbold  says  it  is  usual  to  do  so.  Arch.  PI.  170.  But  neither 
refers  to  any  authority,  nor  do  I  find  any  case  on  the  point.  Sergeant 
Williams,  however,  in  his  note,  2  Saund.  187c,  directs  that  the  declara- 
tion should  conclude,  not  as  in  covenant,  but  as  in  debt;  where  the 
damages  are,  in  general,  formal  and  nominal  only,  and  a  small  sum  is 
usually  inserted.  1  Chitty,  PI.  360.  Before  the  statute  8th  and  9th 
Wm.  3,  the  plaintiff  had  judgment  for  the  penalty  and  nominal  dam- 
ages and  costs,  and  was  entitled  to  execution  for  the  whole.  1  Saund. 
58,  n.  1.  Under  the  statute  the  jury  are  to  assess  the  damages  for  the 
breaches,  besides  a  verdict  as  before;  and  judgment  is  to  be  entered 
for  the  penalty,  nominal  damages  and  costs,  without  including  the 
damages  assessed  for  the  breaches  by  the  jury.  1  Saund.  Id. ;  1  Dun- 
lap  Prac.  392.  In  Smith  v.  Jansen,  8  Johns  (N.  Y.)  115,  Kent,  J., 
said,  "It  would  seem  to  be  the  better  construction  of  the  act  that  the 
assessment  is  only  to  regulate  the  sum  to  be  levied  on  the  execution, 
and  that  judgment  is  to  be  entered  as  if  there  had  been  no  assessment." 
Hence  it  follows  that  as  the  damages  assessed  for  the  breach  are 
not  to  be  included  in  the  judgment,  but  the  damages  for  detention 
only  and  costs,  there  will  be  no  incongruity  between  the  amount  in 
the  conclusion  of  the  declaration  and  the  amount  in  the  judgment,  by 
reason  of  the  amount  of  damages  for  the  breach  being,  as  it  will  gen- 
erally perhaps  always  be,  greater  than  for  the  detention  of  the  debt. 
I  can  perceive  no  satisfactory  reason  for  the  direction  given  by  Chitty, 
which  has  afforded  the  foundation  of  the  exception  now  under  con- 
sideration, and  I  can  find  in  it  no  authoritative  force.  This  direction 
I  am  warranted  in  saying  has  not  been  the  rule  of  our  practice.  And 
the  case  of  Hankin  v.  Broomhead,  3  Bos.  &  Pul.  607,  shows  that 
it  is  not  adhered  to  in  England.  The  damages  were  there  laid  at  £200. 
The  assessment  was  to  a  much  larger  sum;  and  no  objection  on  that 
ground  was  made.  The  precedents  in  the  English  books  farther  show 
that  it  is  not  adhered  to  there.  In  5  Wentworth,  490,  the  penalty  was 
£100,  the  damages  in  the  conclusion,  £20.  In  Plead.  Ass.  366,  the 
penalty,  £100,  the  damages,  £5.  In  2  Saund.  80,  the  penalty,  £100,  the 
damages,  £10.  In  5  Wentw.  548,  the  penalty,  £3000,  the  damages 
£20.  And  of  these,  the  first  three  were  on  bonds  of  the  same  kind 
as  the  precedent  in  Chitty;  and  the  whole  may  be  justly  said  to  out- 
weigh his  unsupported  direction. 

6.  The  next  error  alleged  in  the  plaintiifs'  brief  is  that  the  jury 
have  actually  found  a  greater  sum  of  damages  than  $50.  What  I 
have  already  remarked  on  the  last  point  furnishes  a  satisfactory  an- 
swer, in  my  judgment,  to  this  alleged  error. 

7.  The  last  error  urged  in  the  plaintiffs'  brief  is  in  the  amount  of 
the  damages  adjudged  by  the  court  for  the  detention  of  the  debt  as 
well  as  for  the  costs  and  charges.    The  amount  so  adjudged  is  $63.4t5, 


418  PRINCIPLES   OP   GENERAL  APPLICATION  C^^^^  ^ 

exceeding  the  $50  claimed  as  damages  in  the  declaration ;  and  herein, 
it  is  said,  is  error.  The  sum  mentioned  in  the  judgment,  it  is  to  be  ob- 
served, is  not  merely  damages  for  the  detention  of  the  debt.  If  so, 
it  would  be  erroneous,  as  beyond  the  sum  demanded.  But  it  is  also 
in  part  for  the  costs  and  charges;  and  the  amount  of, both,  damages 
and  costs,  may  exceed  the  sum  claimed  in  the  conclusion  of  the  declara- 
tion. Pilford's  Case,  10  Co.  115,  is  in  point  in  answer  to  this  alleged 
error.  Pilford  brought  trespass  against  Dawks,  and  laid  his  dam- 
ages at  i40  and  had  judgment  for  £40  damages  with  costs,  and  costs 
of  increase,  amounting  in  all  to  £50.  Error  was  assigned  for  that 
the  damages  and  costs  together  amounted  to  more  than  the  damages 
alleged  in  the  declaration.  The  subject  was  very  fully  discussed,  and 
the  court  agreed  it  to  be  good  law  that  the  plaintiff  shall  never  recov- 
er more  damages  than  he  has  declared  for,  that  is  to  say,  damages  for 
the  wrong  done,  but  expensse  litis  may  be  added  thereto ;  and  the 
judgment  was  affirmed. 

Upon  the  whole  I  find  no  sufficient  cause  for  the  reversal  of  the 
judgment. 

Ford  and  Drake;,  JJ.,  concurred. 

Judgment  affirmed.^" 


SECTION  2.— VALUE 


HAWKINS  v.  JOHNSON. 

(Supreme  Court  of  Indiana,  1832.     3  Blackf.  46.) 

Appeal  from  the  Martin  Circuit  Court. 

Blackford,  J.^^  This  was  an  action  of  debt  by  Johnson  against 
Hawkins,  Smith,  and  Davis.  The  declaration  states  that  an  execution 
in  favour  of  Johnson  against  Hawkins  was  levied  by  Love,  the  sheriff, 
upon  a  horse,  saddle,  and  bridle,  the  property  of  Hawkins ;  that 
Hawkins,  Smith,  and  Davis  executed  a  bond  payable  to  Love,  sheriff, 
in  the  penalty  of  400  dollars,  conditioned  that  Hawkins  should  de- 
liver the  property  to  Love,  sheriff,  to  be  sold  by  him  at  the  house  of 
John  P.  Davis,  on  the  20th  of  May  then  next  following,  by  the  hour  of 

10  Phillips  V.  Runnels,  1  Morris  (Iowa)  391,,  43  Am.  Dec.  109  (1845) ;  Harri- 
son V.  Park,  1  J.  J.  Marsh.  (Ky.)  170  (1829);  Winslow  v.  Commonwealth,  2 
Hen.  &  M.  (Va.)  459  (ISOS).  Accord.  Fournier  v.  Faggott,  3  Scam.  (111.)  347 
(1842);  Stephens  v.  Sweeney,  7  111.  375  (1845);  Russell  et  al.  v.  City  of  Chi- 
cago, 22  111.  283  (1859) ;    Brown  v.  Smith,  24  111.  196  (1860).     Contra. 

On  riijht  to  remit  excess  before  .iudgment,  see  lander  v.  Monroe,  33  111.  388 
(1804) ;  '"Barber  v.  Rose,  5  Hill  (N.  Y.)  76  (1843) ;  after  .Iudgment,  Bealle  v. 
Schoal,  1  A.  K.  Marsh.  (Ky.)  475  (1819);  Johnson  v.  Robertson,  1  Mo.  615 
(1826) ;  Dennison  v.  Leech,  9  Pa.  164  (1890) ;  Fowlkes  v.  Webber,  8  Humph. 
(Tenn.)  530,  534  (1847). 

11  A  portion  of  the  opinion  is  omitted. 


Ch.  1)  CONCERNING  SUBSTANCE  419 

11  o'clock;  and  that  the  bond  is  defective,  in  being  made  payable  to 
the  sheriff  instead  of  to  the  execution-plaintiff,  the  latter  being  the 
party  interested.  The  breach  assigned  is  that  Hawkins  did  not,  on 
the  said  20th  day  of  May,  at  11  o'clock,  nor  at  any  other  time  since  the 
making  of  the  said  writing  obligatory,  deliver  the  horse,  saddle,  and 
bridle,  nor  either  of  them,  to  Love,  sheriff,  etc.  The  defendants  demur- 
red generally  to  the  declaration,  and  the  court  gave  judgment  for  the 
plaintiff. 

The  appellants,  defendants  below,  rely  for  a  reversal  of  the  judg- 
ment on  the  following  grounds ;     *     *     * 

The  last  objection  is  that  there  is  no  averment  of  the  value  of  the 
property  agreed  to  be  delivered.  This  omission,  in  an  action  like  the 
present,  is  no  objection  on  general  demurrer.  It  might  be  a  substantial 
defect  in  detinue,  where  the  action  is  for  the  goods  themselves  or  their 
value.  But  in  trespass,  or  trover,  or  in  suits  on  contracts  for  the  de- 
livery of  property,  the  averment  of  the  value  is  only  matter  of  form. 
The  Mayor,  etc.,  of  Reading  v.  Clarke,  4  Barn.  &  Aid.  268. 

Per  Curiam.  The  judgment  is  affirmed,  with  5  per  cent,  damages 
and  costs. 


SPXTION  3.— AGENCY 


NICHOLSON  t  V.  CROFT. 

(Court  of  King's  Bench,  1761.     2  Burrows.  11S8.) 

This  was  a  question  (upon  the  master's  report),  "Whether  there 
were,  or  were  not,  more  counts  inserted  in  the  declaration,  than  were 
necessary." 

It  was  a  declaration  upon  a  policy  of  insurance,  consisting  of  seven 
counts;  1st,  for  a  total  loss,  on  a  policy  subscribed  by  the  defendant 
himself;  2d,  for  an  average  loss,  (averred  to  amount  to  i63.  4s.  6d.) 
on  a  policy  subscribed  by  the  defendant  himself ;  3d,  for  £6  per  cent. 
to  be  returned,  (it  being  averred  "that  the  ship  departed  with  con- 
voy,") on  a  policy  subscribed  by  the  defendant  himself ;  4th,  5th,  and 
6th,  exactly  the  same  with  the  1st,  2d,  and  3d,  (respectively,)  with  this 
difference  only,  that  these  three  last  counts  alledged  the  policy  to  have 
been  subscribed  by  one  Manoel  Francis  Silva,  the  defendant's  then 
agent,  factor,  or  servant,  in  that  behalf  by  him  duly  authorized,  ap- 
pointed, and  deputed,  for  that  purpose ;  7th,  for  money  had  and  re- 
ceived to  the  plaintiff's  use.  The  master  (Mr,  Owen)  thought  that 
four  counts  were  sufficient;  viz.,  either  the  three  first  with  the  last; 
or  else  the  4th,  5th,  and  6th,  together  with  the  last. 

The  court  agreed  with  him  in  opinion. 

t  iS'ichlesou  (in  3(1  Ed.). 


420  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

Lord  Mansfield.  On  a  declaration  for  a  total  loss,  you  may  re- 
cover an  average  loss :  yet  I  would  not  tie  the  plaintiff  down  to  declare 
only  for  a  total  loss,  but  leave  the  plaintiff  at  liberty  to  declare  both 
ways.  And  the  latter  method  is  often  of  service  to  a  defendant,  by 
pointing  out  the  particular  average  that  the  plaintiff  goes  for. 

But  it  is  unnecessary  to  declare  double,  with  respect  to  the  signing 
of  the  policy;  that  is  to  say,  once,  as  upon  a  policy  signed  by  the  de- 
fendant himself ;  and  again,  as  upon  a  policy  signed  by  his  agent  for 
him.  One  alone  of  these  two  methods  of  declaring  is  sufficient;  ^-  and 
the  better  way  is  to  declare  according  to  the  truth ;  ^^  that  is,  upon  a 
policy  signed  by  Silva,  as  agent  for  the  defendant,  duly  authorized  by 
him  in  that  behalf.^* 

The  rule  at  last  settled  by  the  court  was  for  striking  out  the  three 
first  counts  (which  alledged  the  pohcy  to  be  signed  by  the  defendant 
himself),  but  without  any  payment  of  costs,  as  this  manner  of  declaring 
was  said  t6  be  usual. 


i 


SECTION  4.— COMPLIANCE  WITH  STATUTE 


GREEN  V.  SEYMOUR. 

(Supreme  Court  of  Vermont,  1SS7.     59  Vt.  459,  12  Atl.  206.) 

General  assumpsit.  Pleard  on  demurrer  to  the  plaintiff's  replica- 
tion to  the  plea  of  the  statute  of  limitations,  April  term,  1886,  Royce, 
C.  J.,  presiding.  Judgment  sustaining  the  demurrer  and  adjudging 
the  replication  insufficient.  Plea  that  the  causes  of  action  did  not  ac- 
crue within  six  years,  etc. 

Replication:  "For  replication,  etc.,  because  they  say  that  prior 
to  the  commencement  of  this  suit,  to  wit,  on  the  first  day  of  August, 
1881,  it  was  mutually  agreed  and  understood  by  and  between  the  said 
plaintiffs  and  the  said  defendant,  for  sufficient  consideration  then  and 
there  stated  and  expressed  between  them;  that  is  to  say,  the  defend- 
ant then  and  there  agreed  to  and  with  the  plaintiffs  that,  in  considera- 
tion that  the  said  plaintiff's  would  cause  the  said  plaintiff  E.  G,  Green 
and  one  S.  C.  Green,  then  a  partner  with  said  E.  G.  Green,  to  pay 
to  the  said  defendant  a  certain  sum  or  balance  in  money,  to  wit,  300 
dollars,  in  full  settlement  of  all  accounts  between  the  said  defendant 
and  the  said  E.  G.  and  S.  C.  Green,  as  such  partners  (which  said  set- 

12  Meers  v.  Stevens,  106  111.  549  (1SS3) ;  Regents  of  University  of  Michigan 
V.  Detroit  Young  Men's  Society,  12  Mich.  1?,S  (1S63) :  Blaclv  Lick  Lumber  Co. 
V.  Camp  Construction  Co.,  63  W.  Va.  477,  60  S.  E.  409  (190S).     Accord. 

13  Childress  v.  Emory,  8  Wheat.  642,  5  L.  Ed.  705  (1823).     Accord. 

1*  An  allegation  that  the  person  acting  as  agent  was  duly  authorized  there- 
to is  sufficient.  Duval  Investment  Co.  v.  Stockton,  54  Fla.  296,  45  South.  497 
(1907).     See,  also,  cases  cited  in  16  Eucyc.  PL  &  Pr.  901,  note  1. 


Ch.  1)  CONCERNING  SUBSTANCE  421 

llement  and  the  terms  thereof  are  in  writing,  and  are  hereby  referred  to, 
and  are  not  herein  set  forth  to  avoid  proHxity),  that  he,  the  said  de- 
fendant, would  take  no  advantage  of  the  statute  of  hmitations  in  the 
final  settlement  of  the  said  several  causes  of  action  in  the  said  declara- 
tion mentioned,  and  each  and  every  one  of  them ;  and  in  consideration  of 
the  said  promise  of  the  said  defendant,  then  and  there  made  as  afore- 
said, they,  the  said  plaintiffs,  caused  the  said  E.  G.  and  S.  C.  Green 
to  pay  to  the  said  defendant  said  sum  of  money,  to  wit,  300  dollars, 
in  settlement  of  all  accounts  betvveen  the  said  defendant  and  the  said 
E;  G.  and  S.  C.  Green,  as  such  partners  as  aforesaid,"  etc. 

Ross,  J.^^  The  demurrer  to  the  replication  raises  but  two  questions 
in  regard  to  its  sufficiency — First,  whether  a  sufficient  consideration 
for  the  defendant's  agreement  to  waive  the  statute  of  limitations  is 
set  forth;  and,  secondly,  whether  it  is  necessary  to  allege  that  such 
agreement  is  in  writing,  signed  by  the  defendant.     *     *     '^' 

To  be  effective  to  remove  the  statute  of  limitations,  such  agree- 
ment or  promise  must  be  in  writing,  signed  by  the  party  to  be  affect- 
ed thereby.  R.  L.  §  974.  In  this 'respect  the  statute  is  analogous  to 
the  statute  of  frauds,  which  declares  that  no  action  shall  be  maintained 
on  certain  promises,  contracts,  and  agreements  unless  in  writing,  sign- 
ed by  a  party  to  be  charged.  At  the  common  law  the  agreements  or 
promises  named  in.  both  statutes  were  binding,  although  unwritten 
and  unsigned.  These  statutes  provide  that,  to  be  operative  to  bind 
the  party  making  them,  the  promises  and  agreements  named  must  be 
evidenced  by  a  written  instrument  signed  by  the  party  to  be  affected. 
The  general  rule  in  regard  to  alleging  in  pleading  matters  affected  by 
such  statutes  is  well  stated  in  4  Bac.  Abr.  655,  as  follows:  "If  a  stat- 
ute makes  certain  circumstances  necessary  to  the  validity  of  an  act, 
which  was  valid  at  the  common  law  without  such  circumstances,  this 
does  not  alter  the  manner  of  pleading  which  was  used  before  the 
making  of  the  statute"  ^^ — instancing  that  29  Car.  2,  c.  3,  required  a 
tenant  for  years  to  assign  his  term  in  writing,  but  that  such  assign- 
ment, being  good  by  parol  at  the  common  law,  may  be  pleaded  with- 
out alleging  it  to  be  in  writing.  In  1  Chit.  PI.  304,  it  is  said :  "The 
nature  of  the  promise  still  remains  the  same  in  the  eye  of  the  law, 
which  does  not  admit  of  any  distinction  between  verbal  and  written 
agreements,  except  where  the  latter  are  under  seal ;  and  it  should 
seem  that  the  provisions  of  the  statute  only  affects  the  rules  of  evi- 
dence, and  not  those  of  pleading."  Yet,  on  page  534,  the  same  author 
says :   "Thus,  in  a  declaration  on  a  promise  to  pay  the  debt  of  anoth- 

15  A  portion  of  the  opinion  is  omitted. 

16  "The  rule  is  that,  where  a  thing  is  originally  authorized  by  statute  which 
could  not  be  done  at  common  law,  then,  in  pleading,  everything  must  be  aver- 
red which  the  statute  requires  to  bring  the  act  done  within  it.  Thus,  in  the 
case  of  a  will  of  lands,  it  must  be  averred  to  be  in  writing."  Dayton  v.  Wil- 
liams, 2  Doug.  (Mich.)  .31,  ?>2  (1S45).  See,  also,  Summerman  v.  Kuowles.  .33  N. 
J.  Law,  202  (1SG8) ;  Walker  v.  Richards,  39  N.  H.  259,  207  (1859) ;  Bayard  v. 
Smith,  17  Wend.  (N.  Y.)  S8  (1S37). 


422  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

er,  in  consideration  of  forbearance,  it  is  not  necessary  to  show  that 
the  promise  was  in  writing,  according  to  the  statute  of  frauds,  but 
it  is  said  to  be  otherwise  in  a  plea."  In  a  note  a  quaere  is  suggested, 
and  Peacock  v.  Purvis,  2  Brod.  &  B.  362,  is  cited.  All  the  authorities, 
so  far  as  observed,  agree  that  in  a  declaration  it  is  not  necessary  to 
allege  that  such  agreements  are  in  writing;  ^'^  and  it  has  been  so  held 
by  this  court  in  Hotchkiss  v.  Ladd,  36  Vt.  593,  86  Am.  Dec.  679. 

The  only  case  I  have  found  for  the  statement  by  Mr.  Chitty,  "but 
it  is  said  to  be  otherwise  in  a  plea,"  is  Case  v.  Barber,  T.  Raym.  450.^*^ 
The  action  was  assumpsit,  and  the  defendant  pleaded  that  the  cause 
of  action  had  been  adjusted  and  settled,  in  part,  by  an  agreement  be- 
tween the  plaintiff,  defendant,  and  defendant's  son,  by  which  the  son 
agreed  to  pay  a  certain  portion  of  the  debt  at  a  future  day,  and  that 
the  son  had  offered  to  pay  the  same,  but  the  plaintiff  refused  to  re- 
ceive it.  To  this  plea  the  plaintiff  demurred ;  the  case  does  not  say 
whether  generally  or  specially.  The  plea  was  held  bad — First,  be- 
cause no  consideration  for  the  son's  promise  was  alleged;  and,  sec- 
ondly, because  it  was  not  alleged  that  the  son's  promise  was  in  writ- 
ing; the  court  holding  that  unless  the  son's  agreement  was  in  writ- 
ing, the  plaintiff  could  have  no  remedy  thereon ;  "and  though  upon 
such  an  agreement  the  plaintiff  need  not  set  forth  the  agreement  to  be 
in  writing,  yet  when  the  defendant  pleads  such  an  agreement  in  bar, 
he  must  plead  it  so  it  may  appear  to  the  court  that  an  action  will  lie 
upon  it;  for  he  shall  not  take  away  the  plaintiff's  present  action,  and 
not  give  him  another  upon  the  agreement  pleaded."  In  regard  to 
this  case,  in  a  note  to  Steph.  PI.  *376,  it  is  said :  "It  is  to  be  observed 
that  the  plea  was  at  all  events  a  bad  one  in  reference  to  the  first  objec- 
tion. The  case  is,  perhaps,  therefore,  not  decisive  as  to  the  validity  of 
the  record."  In  Peacock  v.  Purvis,  2  Brod.  &  B.  .362,  on  which  the 
quffire  is  raised  in  the  note  to  Chitty,  the  defendant  pleaded,  among 
other  things,  a  sale  of  the  property  on  a  fieri  facias  by  agreement,  with- 
out alleging  that  the  agreement  was  in  writing,  as  required  by  statute. 
The  plaintiff  demurred  to  the  plea.  There  was  another  question 
whether  the  substance  of  the  plea  was  a  defense.  The  court  do  not 
allude  to  the  fact  that  the  agreement  was  not  alleged  to  have  been  in 
writing,  but  assume  that  the  plea  was  good  in  that  respect,  and  dis- 
cuss at  length  the  other  question,  and  hold  the  plea  bad  in  substance. 
Generally,  the  same  degree  of  certainty  is  required  in  a  replication  as 
is  required  in  a  plea.  While  in  the  te?^t  both  Mr.  Chitty  and  Mr. 
Stephens,  by  a  qualified  expression,  state  that  while  it  is  not  neces- 
sary, in  a  declaration,  to  allege  that  such  an  agreement  or  promise  is 

17  Whitehead  v.  Burgess,  61  N.  J.  Law,  75,  88  Atl.  S02  (1897),  and  numerous 
cases  cited  in  9  Eucvc.  PI.  &  Pr.  700.  Accord.  For  the  few  cases  contra,  see 
9  Encyc.  PI.  &  Pr.  701,  702. 

18  See,  also,  Duncan  v.  Clements,  17  Ark.  279  (18.56);  Dayton  v.  Williams, 
2  Doug.  (Mich.)  31  (1845) ;  Dewey  v.  Hoag,  15  T5arb.  (N.  Y.)  :365,  368  (185:{) ; 
Duppa  V.  Mayo,  1  Wm.  Saund.  276e,  note  2  (1670).  (In  the  official  report  the 
citation  of  Case  v.  Barber  is  given  as  L.  Raym.  4.50,  instead  of  T.  Raym.  450). 


Ch.  1)  CONCERNING  SUBSTANCE  423 

in  writing,  where  the  writing  is  only  required  to  evidence  the  agree- 
ment or  promise,  and  not  to  make  the  agreement  or  promise  legally 
binding,  yet,  in  the  note  on  the  text,  doubt  is  suggested  in  regard  to 
the  doctrine  of  the  text,  and  the  case  in  2  Brod.  &  B.,  supra,  seems  to 
have  disregarded  the  decision  in  Ld.  Raym.,  from  which  the  doctrine 
of  the  text  seems  to  have  been  taken. 

Whatever  may  be  said  in  regard  to  a  plea,  it  is  not  apparent,  on 
principle,  why  an  allegation  which  would,  confessedly,  on  both  prin- 
ciple and  authority,  be  sufficient  in  a  declaration,  should  not  also  be 
sufficient  in  a  replication.  In  this  state  of  the  common-law  authorities 
it  can  hardly  be  said  to  be  established  that  such  an  allegation  is  neces- 
sary in  a  plea.  All  the  text-book  writers  fully  recognize  the  general 
doctrine  as  stated  by  Mr.  Stephens,  *374:  "With  respect  to  acts  valid 
at  common-law,  but  regulated  as  to  the  mode  of  performance  by  stat- 
ute, it  is  sufficient  to  use  such  certainty  of  allegations  as  was  sufficient 
before  the  statute." 

This  general  doctrine  is  applicable  to  the  replication,  so  far  as  it  is 
wanting  in  allegation,  that  the  defendant's  agreement  to  waive  the  ben- 
efit of  the  statute  of  limitations  was  in  writing,  and  seems  to  have  been 
adopted  by  this  court  as  applicable  to  a  plea  in  Carpenter  v.  McClure, 
Z7  Vt.  127.  If  a  remark  by  Redfield,  C.  J.,  in  Patrick  v.  Adams,  29 
-Vt.  376,  looks  like  a  recognition  of  the  contrary  doctrine,  it  is  to  be 
observed  that  it  was  hardly  required  for  the  decision  then  made,  and 
appears  to  have  been  made  without  examination.  There  is  no  valid 
reason  why  one  rule  should  be  applicable  to  a  declaration  and  another 
to  a  plea  or  replication.  A 'plaintiff  ought  not  to  be  allowed  to  call 
a  defendant  into  court  and  compel  him  to  answer  matter  in  a  declara- 
tion as  sufficient  in  law,  which  he  would  not  be  legally  bound  to  reply 
to  if  interposed  against  him  by  plea ;  nor  can  any  good  reason  be  as- 
signed why  the  defendant  should  be  held  to  answer  matter  as  legally 
sufficient  in  a  declaration  which  would  be  insufficient  in  a  replication. 
In  either  case  he  may  answer  that  the  alleged  agreement  is  not  in  writ- 
ing, or  may  traverse  and  object  to  the  evidence  if  not  in  writing.  We 
think  the  general  doctrine  applicable  to  the  replication  under  consid- 
eration, and  that  if  the  defendant  would  conclude  the  plaintiff  on  the 
pleadings,  rather  than  object  to  the  proof  of  the  agreement  by  parol  on 
a  traverse  of  the  replication,  he  should  have  rejoined  that  the  alleged 
agreement  was  not  in  writing. 

The  judgment  is  reversed,  the  demurrer  overruled,  the  replication 
adjudged  sufficient,  and  the  cause  remanded. 
Whtt.C.L.Pl.— 28 


424  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

SECTION  5.— CONSTRUCTION  OF  PLEADINGS 


TOWN  OF  CAMERON  v.  HICKS. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1909.     05  W.  Ya.  4S4,  64  S.  E. 

832,  17  Ann.  Cas.  926.) 

Action  by  the  Town  of  Cameron  against  John  A.  Hicks,  as  admin- 
istrator of  the  estate  of  C.  Y.  Benedum,  deceased.  Judgment  for 
plaintiff,  and  defendant  brings  error.     Affirmed. 

Poffknbarge;r,  J.^^  The  town  of  Cameron  recovered  a  judgment 
against  John  A.  Hicks,  as  administrator  of  the  estate  of  C.  Y.  Ben- 
edum, for  the  sum  of  $3,484.77,  in  an  action  of  debt  in  the  circuit 
court  of  Marshall  county,  on  a  submission  thereof  to  the  court  in  lieu 
of  a  jury. 

The  overruling  of  the  demurrer  to  the  declaration,  rejection  of  a 
certain  plea,  and  the  finding  on  the  evidence  are  the  subjects  of  com- 
plaint. The  grounds  of  demurrer  are :  (1)  The  charge  is  that  the  de- 
fendant owes,  not  that  he  detains  or  owes  and  detains.  (2)  The  allega- 
tion, respecting  the  making  and  service  of  an  order,  requiring  the  dece- 
dent to  pay  over  the  money,  are  insufficient. 

Tested  by  the  facts,  the  declaration  sets  forth  liability  in  a  represen- 
tative capacity  only.  According  to  these,  the  town  issued  and  sold  its 
bonds  for  sewerage  purposes,  and  placed  the  proceeds  thereof  in  the 
hands  of  T.  C.  Pipes,  Clell  Nichols,  and  A.  E.  Fox,  whom  it  had  ap- 
pointed its  bond  commissioners.  Benedum,  the  decedent,  became 
surety  on  the'  bond  of  Fox  in  the  penalty  of  $4,D00,  the  condition 
whereof  was  that  Fox  should  faithfully  perform  the  duties  of  bond 
commissioner  and  account  for  and  pay  over  all  money  that  should 
come  into  his  hands  by  virtue  of  his  office.  Some  of  the  counts  say 
he  received,  as  such  commissioner,  $3,300,  and  others  that  he,  Pipes 
and  Nichols,  as  such,  received  $10,000,  and  charge,  as  a  breach  of  the 
condition,  the  nonpayment  by  Fox  of  $3,255.56,  part  thereof,  after 
demand  therefor.  There  is  no  suggestion  of  a  devistavit,  and  the 
charge  is  that  the  defendant  owes  the  money  as  administrator.  It 
therefore  imports  an  obligation  in  that  capacity,  and  no  other,  to  pay 
it.  Strictly  and  technically  speaking,  he  detains  the  money.  The  word 
"owes,"  standing  alone,  would  have  a  broader  meaning,  but  it  must  be 
read  in  connection  with  other  parts  of  the  declaration.  Its  true  mean- 
ing, as  used  in  that  instrument,  is  determined,  not  by  its  form  or  sig- 
nification in  the  abstract,  but  by  the  context.  In  their  general  nature 
the  rules  of  construction  applicable  to  pleadings  are  not  materially  dif- 
ferent from  those  pertaining  to  other  documents  or  writings.     It  is 

19  A  portion  of  the  opinion  is  omitted. 


Ch.  1)  CONCERNING  SUBSTANCE  425 

true  everything  must  be  taken  most  strongly  against  the  party  plead- 
ing,-** but  this  maxim  is  operative  only  when  two  meanings  present 
themselves.  If,  on  a  fair  and  reasonable  interpretation  of  the  words 
used,  no  ambiguity  appears,  it  has  no  application.  1  Chitty  on  Plead- 
ing (11th  Ed.)  237,  says:  "But,  in  applying  this  maxim,  the  other  rules 
must  be  kept  in  view,  and  particularly  those  relating  to  the  degree 
of  certainty  or  precision  required  in  pleading.  The  maxim  must  be 
received  with  this  qualification :  That  the  language  of  the  pleading  is 
to  have  a  reasonable  intendment  and  construction ;  and,  where  an 
expression  is  capable  of  different  meanings,  that  shall  be  taken  which 
will  support  the  declaration,  etc.,  and  not  the  other,  which  would  de- 
feat it.  *  *  *  But,  if  it  be  clearly  capable  of  different  meanings, 
it  does  not  appear  to  clash  with  any  rule  of  construction,  applied  even 
to  criminal  proceedings,  to  construe  it  in  that  sense,  in  which  the  party 
framing  the  charge  must  be  understood  to  have  used  it,  if  he  intended 
that  his  charge  should  be  consistent  with  itself.  *  *  *  ^^id  if, 
where  the  sense  may  be  ambiguous,  it  is  sufficiently  marked  by  the  con- 
text or  other  means  in  what  sense  they  were  intended  to  be  used,  no 
objection  can  be  made  on  the  ground  of  repugnancy,  which  only  exists 
where  a  sense  is  annexed  to  words  which  is  either  absolutely  incon- 
sistent therewith,  or,  being  apparently  so,  is  not  accompanied  by  any- 
thing to  explain  or  define  them.  If  the  case  be  clear,  nice  excep- 
tions ought  not  to  be  regarded."  We  applied  this  principle  in  Ceranto 
V.  Trimboli,  63  W.  Va.  340,  60  S.  E.  138.  From  what  has  been  said 
it  must  be  apparent  that  the  use  of  the  word  "owes"  and  the  omission 
of  the  word  "detains"  constitute  nothing  more  than  a  formal  defect, 
if,  indeed,  any  at  all.  It  amounts  to  a  departure  from  the  customary 
form  of  allegation,  an  immaterial  matter,  if  the  declaration  is  sufficient 
in  substance  and  certain  to  a  "certain  intent  in  general."  *  *  * 
Affirmed. 


SECTION  6.— THEORY  OF  PLEADING 


CHARNLEY  v.  WINSTANLEY. 
(Court  of  King's  Bench,  1S04.     5  East,  2G0.) 

The  plaintiff  declared  in  covenant,  that  by  indenture  under  seal  dated 
7th  of  December,  1793,  between  the  plaintiff  of  the  first  part,  the  de- 
fendant Frances,  by  her  then  name  of  Frances  Brown,  spinster,  ad- 

20  For  full  discussion  of  cases  aunouiiciug  this  rule,  see  concurring  opinion 
of  Shackleford,  C.  J.,  in  Atlantic,  etc.,  Co.  v.  Benedict,  etc.,  Co.,  52  Fla.  165, 
173,  42  South.  529.  530  (190(j). 

Where  the  pleading  is  not  attacked  on  deuiuiTer,  the  pleading  is  to  he  con- 
strued liberally  so  as  to  support  the  verdict  or  judgnient.  See  Kelleher  v. 
Chicago  City  li^uhvay  Co.,  25(i  111.  454,  450,  100  X.  E.  145  (1012). 


426  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3 

ministratrix  of  John  Brown,  of  the  second  part,  and  W.  R.,  on  the 
third  part,  the  plaintiff  and  the  said  Frances  agreed  to  leave  to  W.  R. 
to  collect  certain  debts  of  the  late  partnership  between  the  plaintiff  and 
the  defendant's  intestate,  and  to  settle  all  differences,  by  leaving  to  W. 
R.  the  adjustment  and  final  settlement  of  such  accounts  :  they  therefore 
conveyed  all  the  debts  and  effects  of  the  partnership  to  W.  R.  the 
arbitrator.  And  the  plaintiff  and  the  said  Frances  covenanted  with 
each  other,  that  they  would  well  and  truly  obey,  abide  and  perform 
the  award  of  W.  R.  in  the  premises,  provided  the  award  should  be 
made  during  the  natural  lives  of  the  plaintiff  and  the  said  Frances. 
The  plaintiff  then  stated  that,  though  he  had  performed  his  part  of 
the  indenture,  yet  protesting  that  the  defendant  Frances  before  her 
intermarriage  did  not  observe  and  perform,  etc.,  and  that  the  defend- 
ants since  their  intermarriage  have  not  observed,  performed  or  ful- 
filled any  thing  in  the  said  indenture  contained  on  the  part  of  the  said 
Frances;  he  averred  that,  after  the  making  of  the  said  indenture  and 
the  intermarriage  of  the  defendants,  and  during  the  joint  lives  of  him, 
the  plaintiff,  and  the  said  Frances,  viz.  on  the  22d  of  July,  1803,  W. 
R.  duly  made  his  award  concerning  the  premises,  and  awarded  the 
said  Frances  to  pay  to  the  plaintiff  a  certain  sum  on  the  10th  of  August 
then  next ;  of  all  which  premises  the  defendants  had  notice,  etc.  The 
plaintiff  then  alleged,  as  a  breach,  that  the  defendants  did  not  on  the 
said  10th  of  August,  and  after  making  the  award,  pay  the  sum  award- 
ed ;  contrary  to  the  said  indenture  and  the  covenant  of  the  said  Fran- 
ces ;  and  so  the  plaintiff"  says,  tliat  the  defendants  have  not,  nor  hath 
either  of  them  kept  with  him  the  covenant  of  the  said  Frances,  al- 
though requested,  etc.  To  this  the  defendants  pleaded  non  est  factum ; 
and  after  verdict  for  the  plaintiff  it  was  moved  in  arrest  of  judgment 
that  the  marriage  of  the  defendant  Frances  after  entering  into  the 
covenant  to  submit  to  arbitration,  and  before  any  award  made,  was 
a  revocation  of  the  arbitrator's  authority,  and  consequently  there  could 
be  no  breach  of  an  award  which  he  had  no  authority  to  make. 

Lord  EllEnborough,  C.  J.  If  this  had  come  upon  a  special  de- 
murrer as  for  a  defective  allegation  of  the  breach  of  covenant  by 
marrying,  there  would  have  been  good  ground  for  the  defendant's 
objection  to  the  manner  of  declaring;  for  here  the  breach  of  cov- 
enant arising  out  of  the  facts  shewn  by  the  declaration  is  the  fact 
of  the  defendant's  intermarriage  before  any  award  made,  by  which  the 
defendant  Frances  incapacitated  the  arbitrator  from  making  any  award 
to  bind  her,  and  thereby  broke  her  covenant  to  abide  the  award  of 
the  arbitrator.  But  the  plaintiff  not  relying  on  this,  proceeds  to  shew 
by  way  of  breach  that  the  defendant  Frances  did  not  pay  the  money 
awarded  after  such  intermarriage.  But  notwithstanding  the  plaintiff" 
has  stated  his  real  gravamen  informally,  yet  if  upon  the  whole  it  ap- 
pear that  the  defendant  Frances  has  committed  a  breach  of  covenant, 
the  judgment  cannot  be  arrested.     Now  here  the  plaintiff,  protesting 


Ch.  1)  CONCERNING  SUBSTANCE  427 

that  the  defendant  Frances  did  not  before  her  intermarriage  observe 
her  part  of  the  indenture,  avers  that  after  the  making  of  the  indenture, 
and  the  intermarriage  of  the  defendants,  the  arbitrator  made  his  award. 
That  is  a  sufficient  allegation  of  the  fact  of  the  marriage  being  before 
the  award,  which  constitutes  a  breach  of  the  covenant,  to  warrant  us 
in  giving  judgment  for  the  plaintiff  on  that  ground.  And  this  upon 
the  principle,  which  we  had  occasion  to  consider  very  fully  in  a  late 
case,  that  however  defective  the  pleadings,  and  however  imperfect 
the  prayer  of  judgment  on  either  side  may  be,  we  are  bound  ex  officio 
to  give  such  a  judgment  as  upon  the  whole  record  the  law  requires  us 
to  do.-^ 

Rule  discharged.^^ 


SECTION  7.— ALLEGATIONS  OF  EVIDENCE 


COX  V.   PROVIDENCE   GAS   CO. 
(Supreme  Court  of  Rhode  Island,  1.891.     17  R.  I.  199,  21  Atl.  344.) 

Trespass  on  the  case.     On  demurrers  to  the  declaration. 

Durfee;,  C.  J.  This  is  case  for  damages  for  injuries  received  by  the 
plaintiff,  an  employe  of  the  defendant  company,  while  at  work  as  such 
at  the  company's  gasworks,  in  consequence  of  an  explosion  in  or  from 
a  tank  or  receptacle  excavated  in  the  ground  near  where  he  was  at 

21  The  concurring  opinions  of  Grose,  J.,  Lawrence,  J.,  and  Le  Blanc,  J., 
are  omitted. 

22  "It  appears  by  the  plea  that  the  defendant,  by  countermanding  the  author- 
ity of  the  arbitrators,  has  brolven  the  covenant  to  abide  by  the  award,  or  that 
whereby  he  stipulated  not  to  hinder  the  arbitrators  from  making  an  award ; 
and  it  is  urged  on  the  part  of  the  plaintiff  that,  although  this  plea  Is  an  an- 
swer to  the  cause  of  action  suggested  in  this  count,  yet  that,  inasmuch  as  it 
appears  upon  the  ^-^•hole  record  that  the  defendant  has  been  guilty  of  a  breach 
of  covenant,  the  plaintiff  is  entitled  to  judgment  upon  that  count,  and  the 
case  of  Charnley  v.  Winstanley,  5  East,  2G6  (1S04),  has  been  relied  upon.  That 
case,  however,  is  very  distinguishable  from  the  present.  There  it  appeared 
upon  the  face  of  the  plaintiff's  count  that  the  award  was  made  after  one  of 
the  pnrties  to  the  submission  had  become  a  feme  covert.  Her  marriage  was 
in  itself  a  revocation  of  the  authority  of  the  arbitrators,  and  therefore  was 
a  breach  of  the  covenant  to  abide  by  the  award.  In  this  case,  the  breach  of 
that  covenant  is  disclosed  only  by  the  defendant's  plea,  and  it  has  never  been 
held  that  a  plaintiff'  who  seeks  to  recover  damages  for  one  ground  of  action 
stated  in  his  count  is  entitled  to  recover  in  respect"  of  another  disclosed  by  the 
defendant's  plea.  I  am  of  oi)inion  that  a  plaintiff  can  recover  only  in  respect 
of  the  ground  of  action  stated  in  his  declaration."  Abbott,  C.  J.,  in  Marsh 
V.  Bulteel,  5  B.  &  Aid.  507  (1822).  See,  also,  Head  v.  Baldrey,  6  A.  &  E.  459 
(1837) ;  Le  Bret  v.  Papillon,  4  East,  502  (1804) ;  East,  etc.,  Rv.  Co.  v.  Reames, 
75  111.  App.  28  (1S97) ;  Guianios  v.  De  Camp  Coal  Mining  Co..  242  111.  27S,  89 
N.  E.  1003  (1909).  Cf.  Meyers  v.  McQueen,  85  Mich.  156,  IGO,  48  N.  W.  553 
(1891). 


428  PRINCIPLES   OP   GENERAL   APPLICATION  (Part  3 

work.  The  declaration  contains  three  counts.-^  *  *  *  'pj^g  third 
count  sets  forth  the  circumstances  of  the  explosion  and  the  conse- 
quent injury  substantially  as  they  are  set  forth  in  the  second  count, 
but  it  contains  no  allegation  of  negligence  on  the  part  of  the  company. 
It  may  be  that  a  jury,  on  proof  of  the  facts  alleged,  would  infer  that 
the  explosion  occurred  in  consequence  of  the  company's  negligence,  in 
the  absence  of  any  counter  testimony,  but  nevertheless  the  company's 
negligence  is  a  fact  to  be  proved  by  the  plaintiff,  either  directly  or  in- 
ferentially,  in  order  to  recover;  it  being,  indeed,  the  very  gist  of  the 
action,  and,  as  such,  it  must  be  alleged,  or  appear  by  legal  intendment 
from  what  is  alleged.  The  demurrer  to  the  third  count  is  therefore 
sustained. 

Demurrers  to  first  and  second  counts  overruled  after  amendments 
of  such  counts  as  above  indicated.  Demurrer  to  third  count  sus- 
tained.-* 


NORTH  V.  KIZER. 

(Supreme  Court  of  Illinois,  1S74.     72  111.  172.) 

Sheldon,  J.-^  This  was  an  action  of  assumpsit,  brought  by  Kizer 
&  Fullenwider,  as  partners,  against  North,  to  recover  damages  for 
the  alleged  breach  of  the  following  contract  in  writing,  by  not  accept- 
ing and  paying  for  the  hogs  therein  mentioned,  to  wit : 

"March  21,  1871. 

'T  have  this  day  sold  B.  H.  North  three  hundred  fat,  merchantable 
hogs,  to  average  two  hundred  and  fifty  pounds  gross  and  upwards,  to 
be  delivered  at  Buffalo  Station,  Illinois,  between  the  15th  of  July 
and  the  15th  of  August  next,  at  the  option  of  the  buyer,  buyer  to  give 
seller  eight  days'  notice  when  to  deliver.  The  buyer  agrees  to  pay  sev- 
en dollars  per  hundred  pounds  gross.  Said  hogs  are  the  hogs  I  bought 
of  Dunnick.  P.  H.  Kizer. 

"B.  H.  North." 

2  3  The  portion  of  the  opinion  dealing'  with  the  sufficiency  of  the  first  and 
second  counts  is  omitted. 

24  Bedell  v.  Stevens,  28  N.  H.  US,  124  (1853),  accord.  Cf.  Spencer  v.  South- 
wick,  9  Johns.  (N.  Y.)  314  (1812);  Winheim  v.  Field,  107  111.  App.  145,  151 
(1903). 

"This  latter  contention  [i.  e.,  that  the  declaration  alleged  evidentiary  and 
not  ultimate  facts]  is  no  doubt  true,  but  as  the  evidentiary  facts  alleged  are 
sufficient,  if  true,  to  establish  conclusively  the  ultimate  facts,  the  defect  in 
this  respect  is  one  of  form,  and  not  one  of  substance.  If  the  evidentiary 
facts  alleged  were  insufficient  in  law  to  establish  the  ultimate  facts,  the  defect 
would  be  one  of  substance,  proper  to  be  reached  bj^  general  demurrer,  but  if 
the  ob.1ection  be  simply  to  this  manner  of  pleading  the  ultimate  facts,  the 
defect  is  one  of  form,  and  could  formerly  be  reached  by  special  demurrer  only." 
Camp  &  Bros.  v.  Hall,  39  Fla.  535,  568,  22  South.  792,  796  (1897). 

25  A  portion  of  the  opinion  of  Sheldon,  J.,  and  the  dissenting  opinion  of 
McAUistei-,  J.,  are  omitted. 


Ch.  1)  CONCERNING  SUBSTANCE  429 

The  declaration  averred  that  the  plaintiffs  were  partners  in  the  con- 
tract; that  they  were  always  ready,  between  the  15th  of  July  and  the 
15th  of  August,  to  deliver  the  hogs;  that  the  defendant  failed  to 
give  any  notice  when  to  deliver  the  hogs,  and  that  on  the  15th  day  of 
August,  1871,  the  plaintiffs,  at  the  place  designated,  did  tender  and 
offer  to  deliver  to  the  defendant  the  hogs,  which  the  latter  failed  to 
accept  and  pay  for. 

The  declaration  contained  seven  counts,  all  upon  the  above  contract. 
A  demurrer  to  the  declaration,  which  was  made  several  to  each  count, 
was  overruled,  and,  the  defendant  standing  by  his  demurrer,  a  jury 
was  thereupon  called,  and  the  plaintiffs'  damages  were  assessed  before 
the  court,  by  a  jury,  at  $2,858.51,  for  which  judgment  was  rendered. 
The  defendant  appeals.     *    *    * 

This  [the  fifth]  count  sets  out  the  contract  in  hsec  verba,  and  then 
alleges  the  subsecjuent  agreement  to  extend  the  time  of  performance 
so  as  to  include  the  15tli  day  of  August,  the  tender  of  delivery  on  that 
day,  and  the  breach  in  not  accepting  and  paying  for  the  hogs,  without 
setting  forth,  in  express  words,  a  promise  to  accept  and  pay  for  the 
hogs,  or  a  consideration  for  the  promise,  and  it  is  insisted  that  the 
count  is  defective  in  this  last  particular. 

There  are  two  well-recognized  modes  of  declaring  upon  a  written 
contract,  either  by  setting  it  out  in  haec  verba,  or  according  to  its  legal 
effect.  When  the  former  mode  is  adopted,  as  in  this  case,  the 
court  will  construe  the  contract  for  the  pleader,  and  recognize  what 
is  its  legal  effect.  This  written  contract,  upon  its  face,  imports  a 
promise  by  the  defendant,  upon  a  sufficient  consideration,  to  accept 
and  pay  for  the  hogs  upon  performance  on  his  part  by  the  seller — such 
is  its  legal  effect.-*^ 

After  setting  out  the  contract  in  its  very  words,  to  declare  further 
what  is  its  legal  effect,  would  seem  to  be  superfluous — it  would  be 
averring  what   already  appears.-' 

Authority  may  be  found  to  the  effect  that  a  declaration  in  assumpsit 
which  does  not  contain  the  word  "promised"  may,  nevertheless,  be 
good,  provided  it  sufficiently  appears,  from  the  whole  declaration,  that 
what  is  equivalent  to  a  promise  has  taken  place.     1  Chit.  PL  301. 

26  Pleading  accordinij  to  legal  effect.  Gaddv  v.  McCleave,  59  111.  182  (1871) ; 
Stultz  V.  Locke,  47  Md.  502  (1878);  Hovey  v.  Smith,  22  Mich.  170  (1871); 
Starcher  v.  Hope  Natural  Gas  Co.,  72  W.  Ya.  167,  77  S.  E.  900  (1913). 

27  "The  first  count  *  *  *  adopts  very  nearly  the  words  of  the  contract 
itself.  This  is  sometimes  sufficient  and  sometimes  not.  That  depends  on  the 
degree  of  precision  and  certainty  with  which  the  contract  is  drawn.  *  *  * 
But  in  regard  to  a  declaration,  it  should  be  certain  to  a  conuuen  intent,  and 
where  the  contract  is  not  so  it  becomes  the  duty  of  the  pleader  intelligibly  to 
express  that  view  of  the  contract  upon  which  the  plaintiffs  claim  is  founded." 
Town  of  Royalton  v.  Royalton,  etc.,  Co.,  14  Vt.  311,  321  (1842). 

Some  cases  hold  that  an  essential  averment  cannot  lie  supplied  by  the  writ- 
ing set  forth  in  ha'c  verba.  See  Bean  v.  Ayers,  G7  Me.  482  (1S78) ;  Brown  v. 
Starl)ird.  98  Me.  292,  56  Atl.  902  (1903) ;  Cooke  v.  Sinnns,  2  Call  (Va.)  39 
(1799)  :  Wh<H>liii-  etc.,  Co.  v.  Wheeling,  etc.,  Co.,  62  W.  Va.  288,  292,  57  S.  E. 
826  (1907),  semble. 


480  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

A  promise  and  consideration  have  been  at  least  substantively  set 
forth,  and  we  must  regard  the  count  as  sufficient  in  this  respect,  on 
general  demurrer.     *     *     * 

Judgment  affirmed. 


SECTION  8.— CONCLUSIONS  FROM  EVIDENCE 


STANDIFORD  v.  GOUDY. 

(Supreme  Court  of  Appeals  of  West  Virginia,  1S73.     G  W.  Ya.  364.) 

Hoffman,  J.  This  is  an  action  of  trespass  on  the  case,  the  declara- 
tion in  which  contains  two  counts. 

[The  court  held  the  first  count  good.] 

The  second  count  alleges  that  one  Woods  was  the  owner  in  fee 
simple  of  two  coterminous  tracts  of  land,  the  first  and  second,  sep- 
arately bounded  as  specified ;  that  Woods,  by  deed,  conveyed  the  first 
of  the  tracts  to  one  Sharnock  in  fee  simple,  and  he,  by  deed,  con- 
veyed the  same  to  the  plaintiff  in  fee  simple ;  that  by  virtue  of  these 
deeds  Sharnock  took,  and  from  him  the  plaintiff  took,  a  way  append- 
ant to  the  first  tract,  at  and  before  the  deed  from  Woods  to  Shar- 
nock, which  way  runs  and  did  then  commence  and  run  from  that  tract, 
through  and  over  the  second  tract,  to  a  public  highway,  described; 
and  that,  till  the  time  of  the  committing  of  the  grievance  therein 
mentioned,  the  plaintiff  was,  and  thence  hitherto  has  been  and  still 
is,  lawfully  possessed  of  the  first  tract,  and,  by  reason  thereof,  the 
plaintiff,  during  the  time  mentioned,  ought  to  have  had,  and  still  of 
right  ought  to  have  and  did  have,  until  the  happening  of  the  griev- 
ance mentioned,  the  way,  described  as  in  the  former  count.  Yet,  etc., 
as  in  that  count. 

This  count  purports  to  state,  not  merely  that  the  plaintiff  had  a  right 
of  way,  such  as  is  referred  to,  but  to  set  forth  the  facts  that  con- 
stitute his  title.  It  indicates,  negatively,  that  if  these  facts  do  not 
make  his  right,  he  has  none. 

It  is  said  that  prescription  requires  a  continued  enjoyment  of  an 
incorporeal  hereditament,  for  a  time  without  memory  to  the  contrary, 
and  that  such  prescription  cannot  exist  in'  this  or  any  other  state  in 
the  Union.  And  it  is  stated  that  a  right  of  way  is  appendant  only  when 
it  is  prescriptive.  But  it  is  generally  asserted — and  I  believe  not  con- 
troverted— that  the  presumption  of  a  pre-existing  grant,  under  which 
the  way  has  been  used,  is  the  foundation  of  the  prescription.  For  this 
reason  principles  of  pleading  applicable  to  contracts  are  applied  to  pre- 
scription, though  prescription  is  not  pleaded  as  a  contract.  And  the 
use  of  a  way,  with  claim  of  right,  for  a  period  long  enough  to  bar 
an   action    for   the   recovery   of    land,   creates   the   presumption   of   a 


Ch.  1)  CONCERNING  SUBSTANCE  431 

grant,  which  is  sometimes  called  prescription.  I  do  not  perceive  that 
these  classes  of  rights  differ  in  their  origin  or  character,  though  they 
may  vary  as  to  duration  of  the  enjoyment  that  evinces,  and  perhaps 
as  to  the  conclusiveness  of  the  presumption  that  secures  them.  Nor 
do  I  perceive  that  a  right  incident  to  one  tract  of  land,  to  a  way 
through  another,  is  any  more  or  less  appendant  or  appurtenant,  be- 
cause it  is  secured  by  prescription  founded  in  immemorial  enjoyment, 
or  the  presumption  of  a  grant  from  enjoyment  continued  for  a  limited 
period,  or  the  implication  of  a  grant  from  necessity,  in  order  to  the 
enjoyment  of  land  conveyed,  or  an  express  grant  or  creation  of  right. 
But,  as  the  word  "appendant"  has  been  used  in  the  restricted  sense 
already  mentioned,  while  the  w^ord  "appurtenant"  has  not  been  so 
limited  in  its  employment,  the  latter  may  be  preferable  in  pleading 
as  well  as  in  conveyancing. 

The  count  in  question,  however,  indirectly  alleges  or  indicates  that, 
while  Woods  owned  the  two  adjoining  tracts  of  land,  he  had,  ap- 
pendant to  the  one,  a  way  over  the  other.  This  is  a  contradiction. 
The  absolute  owner  of  both  tracts  cannot  have  an  easement  over  the 
one  appendant  or  appurtenant  to  the  other. 

When  the  owner  of  two  tracts  of  land  has  used  a  way  to  and  from 
one,  over  the  other,  no  matter  how  long,  and  he  grants  the  former 
tract  without  mention  of  any  way,  unless  the  way  is  necessary  to  the 
enjoyment  of  the  tract  granted,  the  mere  grant  of  the  land  does  not 
create  or  confer  a  way  appendant,  appurtenant,  or  in  gross. 

The  statute,  declaring  that  a  deed,  unless  an  exception  be  contained 
in  it,  shall  be  construed  to  include  appurtenances,  does  not  apply  to 
the  creation  of  easements,  but  to  the  transfer  of  those  already  existing. 

The  count  does  not  allege  any  necessity  for  a  way  over  the  tract 
retained,  in  order  to  the  enjoyment  of  the  tract  granted,  or  any  fact 
that  would  imply  the  grant  of  such  a  way.  Nor  does  it  indicate  that 
there  was  an  express  grant  of  a  way.    The  count  is  therefore  bad.-^ 

The  defendant  demurred  to  the  declaration,  but  not  to  each  count ; 
and  the  court  sustained  the  demurrer. 

As  the  demurrer  was  to  the  whole  declaration,  one  count  of  which 
was  good,  and  was  not  to  each  count,  the  demurrer  should  have  been 
overruled. 

The  judgment  of  the  Circuit  Court  is  reversed,  the  demurrer  over- 
ruled, costs  awarded  the  appellant,  and  the  cause  remanded  for  fur- 
ther proceedings  according  to  law. 

Haymond,  President,  Paull  and  MooRiC,  Judges,  concur  in  the 
foregoing  opinion. 

2  8  Lockart  v.  Roberts,  3  Bibb  (Ky.)  .361,  363  (1S14).  Accord.  See  Williams' 
Saunders,  23,  note  5,  and  23a,  note  ni. 

Wbei'e  the  specific  facts  allewd  are  inconsistent  with  a  general  averment 
or  conclusion,  the  former  control.  Dauniler  v.  Narracansett  Browinii  Co.,  2.3 
R.  I.  430,  4.33,  50  Atl.  841  (1901) ;  Catliu  v.  Glover,  4  Tex.  151  (1849) ;  Suu  Life 
Assurance  Co.  v.  Bailey,  101  Va.  443,  44  S.  E.  692  (1903). 


432  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

SECTION  9.— ALLEGATIONS  OF  LAW 


SEYMOUR  V.  MADDOX. 

(Court  of  Queen's  Bench,  1851.     16  Q.  B.  326.) 

Case.  The  declaration  stated :  That  the  defendant  was  possessed 
of  a  certain  theatre,  to  wit,  the  Princess's  Theatre,  etc.,  and  of  a  certain 
stage  therein,  on  which  operas  and  other  dramatic  entertainments  were 
performed,  and  of  a  certain  dressing  room  therein,  known  as  the 
dressing  room  of  the  male  chorus  singers,  and  of  a  certain  floor  there- 
in underneath  the  said  stage,  called  the  Mazarine  Floor,  in  which  floor 
was  a  certain  cut  or  hole  of  great  depth,  etc.,  across  and  along  which 
said  floor  persons  performing  at  and  in  the  theatre,  in  operas  and  oth- 
er dramatic  entertainments,  were  accustomed,  before,  during,  and  aft- 
er the  performance  thereof,  to  pass  from  and  to  said  dressing  room 
to  and  from  the  back  of  the  stage.  That  defendant  had  hired  plain- 
tiff to  act,  sing,  and  perform  as  a  chorus  singer  at  the  theatre  on  the 
said  stage,  for  reward  in  that  behalf.  That  plaintiff,  on  the  31st  May, 
1848,  did  act,  sing  and  perform  at  the  said  theatre  on  the  stage  un- 
der such  hiringras  aforesaid,  in  a  certain  opera  called  the  Crown  Dia- 
monds, which  opera  was  then  and  there  performed  under  the  manage- 
ment of  and  for  the  profit  of  the  defendant.  That  it  then  became 
and  was  the  duty  of  the  defendant  to  cause  the  said  Mazarine  Floor 
to  be  so  sufficiently  lighted,  and  the  said  cut  or  hole  to  be  so  fenced, 
guarded  or  secured,  before,  during,  and  until  after  the  lapse  of  a  rea- 
sonable time  from  the  termination  of,  the  said  performance,  as  to 
prevent  any  accident  or  injury  to  persons  passing  across  and  along 
the  Mazarine  Floor  from  and  to  the  dressing  room  to  and  from  the 
back  of  the  stage.  That  the  defendant,  well  knowing  the  premises, 
suffered  and  permitted  the  Mazarine  Floor  to  be  insufficiently  light- 
ed, and  the  cut  or  hole  to  be  open  without  any  sufficient  fence,  guard 
or  security,  before,  during,  and  until  after  the  lapse  of  a  reasonable 
time  from  the  termination  of,  the  performance,  by  reason  of  -which 
insufficient  lighting  as  aforesaid,  and  of  the  cut  or  hole  being  so  as 
aforesaid  open  without  any  sufficient  fence,  guard  or  security,  the 
plaintiff,  who  was  then,  within  a  reasonable  time  from,  to  vnt,  im- 
mediately after,  the  termination  of  the  performance,  passing  from  the 
back  of  the  stage  across  and  along  the  Mazarine  Floor  to  the  dress- 
ing room,  fell  into  and  down  the  cut  or  hole,  and  thereby  was  then 
grievously  bruised  and  injured,  etc. 

Pleas,  among  others,  not  guilty,  and  a  traverse  of  the  alleged  duty. 
Issues  thereon. 

On  the  trial,  before  Erie,  J.,  at  the  Middlesex  sittings  after  last 
Trinity  term,  the  verdict  was  for  the  plaintiff. 


Ch.  1)  CONCERNING  SUBSTANCE  433 

Chambers,  in  last  jMichaelmas  term,  obtained  a  rule  nisi  to  arrest 
the  judgment,  on  the  ground  that  the  declaration  shewed  no  such 
duty  to  light  and  fence  the  hole  as  alleged. 

Lord  CampbEIvIv,  C.  J.-''  I  am  of  opinion  that  judgment  in  this  case 
must  be  arrested.  The  duty,  a  breach  of  which  is  laid,  does  not  arise 
from  the  particular  facts  stated  in  the  declaration  nor  from  the  general 
relation  of  master  and  servant.  What,  then,  is  the  effect  of  the  posi- 
tive allegation  of  such  duty?  I  confess  that  I,  at  first,  thought  that, 
where  a  relation  from  which  a  particular  duty  may  arise  is  alleged, 
and  the  particular  duty  is  also  alleged,  it  might  be  shewn  in  evidence 
that,  in  fact,  such  a  duty  did  arise,  and  that  it  was  unnecessary  to  set 
forth  the  facts  themselves  which  raise  the  duty.  But  the  decisions 
shew  that  the  allegation  of  duty  is  in  all  cases  immaterial,  and  ought 
never  to  be  introduced ;  for,  if  the  particular  facts  raise  the  duty, 
the  allegation  is  unnecessary,  and,  if  they  do  not,  it  will  be  unavail- 
ing. In  this  case  there  is  an  allegation  that  it  was  the  defendant's 
■duty  to  light  the  floor  and  fence  the  hole,  but  no  facts  are  stated 
from  which  the  duty  arises.  The  express  allegation,  therefore,  will 
not  help  the  defect,  and  the  declaration  is  bad. 

Pattkson,  J.  It  has  been  determined  that  it  is  not  necessary  to 
allege  the  duty  where  it  arises  from  the  particular  facts  stated  in  the 
declaration :  and  the  cjuestion  now  is,  virtually,  whether,  if  facts  are 
stated  which  do  not  raise  the  duty,  you  may  prove  it  by  other  facts 
than  those  stated.  If  you  may  not  so  prove  it,  then  we  must  look 
at  the  particular  facts  which  are  stated  in  the  declaration  and  at  those 
only,  and  cannot  treat  the  declaration  as  aided  by  a  verdict  founded 
on  any  other  facts.  The  allegation  of  duty  is  a  mere  inference  of  law, 
and  cannot  be  traversed:  therefore  the  declaration  must  stand  or 
fall  by  the  facts  stated,  and  cannot  be  helped  by  the  unnecessary  al- 
legation of  duty.  And,  as  in  this  case  the  breach  is  of  a  duty  which 
does  not  arise  from  the  mere  contract  or  relation  between  the  par- 
ties, nor  from  the  facts  stated,  I  am  of  the  opinion  that  the  declara- 
tion is  bad. 

Rule  absolute.^" 

2  0  The  concurring  opinions  of  Coleridge,  J.,  and  Erie,  J.,  are  omitted. 

3  0  Milligan  et  al.  v.  Keyser  et  al.,  52  Fla.  .331,  42  Soutli.  3fi7  (100(i) :  Scluieler 
V.  Mueller,  193  111.  402,  61  N.  E.  1044  (1901) ;  Barlow  v.  Burns.  TO  N.  J.  Law, 
631,  57  Atl.  262  (1904) ;  King  v.  Interstate,  etc.,  Co.,  23  R.  I.  583,  51  Atl.  .301, 
70  L.  R.  A.  924  (1902).  Accord.  Cf.  Flint,  etc.,  Co.  v.  Stark,  38  Mich.  714 
(1878).  For  numerous  illustrations  of  averments  held  to  be  allegations  of 
law,  see  31  Cyc.  52  et  seq. 

In  pleading  judgments  it  was  early  settled  that  it  was  not  necessary  to  set 
forth  all  the  proceedings  in  the  court  renderin.g.  the  judgmenf.  Murray  v. 
Wilson,  1  Wils.  316  (1752).  As  to  method  of  pleading  judgments,  see  Sheldon 
V.  Hopkins,  383,  supra,  and  notes  thereto ;    11  Eucyc.  PI.  &  Pr.  1125  et  seq. 


434:  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  S 

DAY  V.  CHISM.      . 
(Supreme  Court,  of  the  United  States,  1825.     10  Wheat.  449,  G  L.  Ed.  363.) 

Error  to  the  circuit  court  of  the  United  States  for  Tennessee. 

Marshall,  C.  J.  This  is  an  action  of  covenant  brought  by  the 
heirs  and  devisees  of  Nathaniel  Day,  in  the  court  for  the  seventh  cir- 
cuit, for  the  district  of  Tennessee,  on  a  covenant  contained  in  a  deed 
from  the  defendant  to  the  said  Nathaniel  Day,  purporting  to  convey 
a  tract  of  land  therein  mentioned.  The  declaration,  which  contains 
six  counts,  states  the  covenant  in  the  fourth,  in  the  following  words : 
That  the  said  Obadiah  Chism,  the  defendant,  "then  and  there,  by  the 
said  indenture,  covenanted  and  agreed  with  the  said  Nathaniel  Day,  his 
heirs  and  assigns,  to  warrant  and  defend  the  title  to  the  said  premises 
against  the  claim  of  all  and  every  other  person  whatsoever,  as  his 
own  proper  right  in  fee-simple."  In  the  fifth  count  the  covenant  al- 
leged is  "to  warrant  and  defend  the  land  against  all  and  every  person 
whatever." 

In  some  of  the  counts  the  only  breach  assigned  is  want  of  title  in 
the  defendant.  The  fourth  and  fifth  counts  charge  that  "the  said 
Obadiah,  the  defendant,  hath  not  kept  and  performed  his  covenant 
so  made  with  the  said  Nathaniel  aforesaid,  with  the  said  Nathaniel 
in  his  lifetime,  nor  with  the  plaintiffs  since  his  death,  but  hath  broken 
it  in  this,  that  he  hath  not  warranted  and  defended  the  title  to  said 
premises,  described  in  said  covenant,  against  all  and  every  person  what- 
soever, to  said  Nathaniel  Day,  his  heirs  and  assigns ;  and  also  in  this, 
that  the  said  Obadiah  had  no  title  to  said  tract  of  land,  but  it  was 
vested  in  the  state  of  Tennessee ;  and  the  said  plaintiffs  aver  that, 
by  reason  of  said  want  of  title  in  said  Obadiah,  the  -said  Nathaniel,  in 
his  lifetime,  and  the  plaintiff's  since  his  death,  were  unable  to  obtain 
possession  thereof,  or  to  derive  any  benefit  therefrom ;  and  also  in 
this,  that  the  said  Obadiah  had  not  a  good  and  sufficient  title  to  the 
said  tract  of  land,  and  by  reason  thereof  the  said  plaintiffs  were  ousted 
and  dispossessed  of  the  said  premises  by  due  course  of  law ;  and  also 
in  this,  that  the  said  Obadiah  had  no  title  to  the  said  premises,  but 
the  same  was  in  the  state  of  North  Carolina,  by  reason  whereof  the 
said  Nathaniel,  in  his  lifetime,  and  the  plaintiff's  since  his  death,  were 
and  are  unable  to  obtain  possession  of  the  said  premises." 

The  defendant  demurred  to  the  declaration,  and  assigned  for  cause 
of  demurrer,  that  (1)  "It  does  not  appear  in  and  by  the  said  declara- 
tion, any  averment  or  allegation  therein,  that  the  said  plaintiffs  have 
been  evicted  by  a  title  paramount  to  the  title  of  the  defendant ;  and 
(2)  the  said  declaration  is,  in  other  respects,  defective,  uncertain,  and 
informal." 

The  covenant  stated  in  the  declaration  is,  we  think,  a  covenant  of 
warranty,  and  not  a  covenant  of  seisin,  or  that  the  vendor  has  title. 
In  an  action  on  such  a  covenant,  it  is  undoubtedly  necessary  to  al- 


Ch.  1)  CONCERNING  SUBSTANCE  435 

lege,  substantially,  an  eviction  by  title  paramount,  but  we  do  not  think 
that  any  formal  words  are  prescribed,  in  which  this  allegation  is  to  be 
made.  It  is  not  necessary  to  say  in  terms,  that  the  plaintiff  has  been 
evicted  by  a  title  paramount  to  that  of  the  defendants.  In  this  case, 
we  think  such  an  eviction  is  averred  substantially.  The  plaintiffs  aver 
"that  the  said  Obadiah  had  not  a  good  and  sufficient  title  to  the  said 
tract  of  land ;  and  by  reason  thereof  the  said  plaintiffs  were  ousted 
and  dispossessed  of  the  said  premises  by  due  course  of  law."  This 
averment,  we  think,  contains  all  the  facts  which  constitute  an  evic- 
tion by  title  paramount.  The  person  who,  from  want  of  title,  is  dis- 
possessed and  ousted  by  due  course  of  law,  must,  we  think,  be  evict- 
ed by  title  paramount.^ ^ 

We  think,  then,  that  the  special  cause  assigned  for  the  demurrer 
v/ill  not  sustain  it. 

There  are  other  defects  in  the  declaration,  which  are  supposed  by 
the  counsel  for  the  defendants  in  error  to  be  sufficient  to  support  the 
judgment.  The  plaintiffs  claim  both  as  heirs  and  devisees,  and  do 
not  show  in  particular  how  they  are  heirs,  nor  do  they  set  out  the  will. 

It  is  undoubtedly  true  that  their  title  cannot  be  in  both  characters, 
and  that  the  will,  if  it  passes  the  estate  differently  from  what  it  would 
pass  at  law,  defeats  their  title  as  heirs.  But  a  man  may  devise  lands 
to  his  heirs,  and  the  statement  that  they  are  his  heirs,  as  well  as  his 
devisees,  though  not  a  strictly  artificial  mode  of  declaring,  is  an 
error  of  form  and  not  of  substance.  Of  the  same  character  is,  we 
think,  the  omission  to  state  how  the  plaintiffs  are  heirs,  or  to  set  out 
the  will.  Although,  in  the  case  of  Denham  v.  Stephenson,  1  Salk.  355, 
6  Mod.  241,  the  court  says  "that,  where  H.  sues  as  heir,  he  must  show 
his  pedigree,  and  coment  heres,  for  it  lies  in  his  proper  knowledge," 
the  court  does  not  say  that  the  omission  to  do  this  would  be  fatal 
on  a  general  demurrer,  or  that  it  is  an  error  in  substance.^-  The  plain- 
tiff must  show  how  he  is  heir  on  the  trial ;  and  the  32d  section  of  the 
Judi.ciary  Act  of  Sept.  24,  1789,  c.  20,  1  Stat.  91  (Comp.  St.  1913,  § 
1591),  applies,  we  think,  to  omissions  of  this  description.  The  judg- 
ment may  be  given  "according  to  the  right  of  the  cause,  and  matter  in 
law,"  although  the  declaration  may  not  show  whether  the  plaintiff  is 
the  son  or  brother  of  his  ancestor,  or  may  not  set  out  the  will  at  large. 

31  rractically  tlip  same  allegation  was  upheld  in  Hersbiser  v.  Ward,  29  Nev. 
228,  241,  87  Pae.  171  (1906:   Code),  without  citation  of  authority. 

32  Heard  v.  Baskervile,  Hobart  232  (1615).  Accord.  Treasurer  v.  Hall,  3 
Ohio,  225  (1827).     Contra. 

Where  the  defendant  is  sued  as  heir,  it  is  not  necessary  for  plaintiff  to  show 
defendant's  pedigree.  Denham  v.  Stephenson,  1  Salk.  355  (1705)j  Waller's  Ex- 
ecutors V.  Ellis,  2  Munf.  (Va.)  88.  95  (1810). 

A  general  allegation  of  ownership  is  snlficient.  Bucki  v.  Cone,  25  Fla.  1,  17, 
6  South.  160  (1S89) ;  Bragg  v.  Chicago,  73  111.  152  (1874) ;  Jordan  v.  Record. 
70  Me.  529  (1879) ;  Wright  v.  Williams.  5  Cow.  (X.  Y.)  338  (1826)  ;  Merer  v. 
Horst,  106  Pa.  5.52,  557  (1884),  semble.  But  in  pleading  title  under  a  particular 
estate  the  commencement  of  that  estate  must  be  set  forth.  Johns  v.  Whitley, 
8  Wils.  65  (1770) ;  Wright  v.  Williams,  5  Cow.  (N.  Y.)  338  (1826) ;  and  cases 
•cited  21  PI.  &  Pr.  728. 


436 


PRIX'CIPLES   OF   GENERAL   APPLICATION 


(Part  3 


An  averment  that  he  is  the  heir  or  the  devisee,  avers  substantially 
a  valid  title,  which  it  is  incumbent  on  him  to  prove  at  the  trial. 

The  declaration  presents  another  objection,  respecting  which  the 
court  has  felt  considerable  difficulty.  In  the  same  count  breaches 
are  assigned  which  are  directly  repugnant  to  each  other.  The  plain- 
tiffs allege  that,  from  the  defect  of  title  in  the  vendor,  they  have  not 
been  able  to  obtain  possession  of  the  premises ;  and  also  that  they 
have  been  dispossessed  of  those  premises  by  due  course  of  law. 
These  averments  are  in  opposition  to  each  other.  But  the  allegation 
that  possession  has  never  been  obtained  is  immaterial,  because  not 
a  breach  of  the  covenant,  and,  the  majority  of  the  court  is  disposed 
to  think,  may  be  disregarded  on  a  general  demurrer. 

It  is  the  opinion  of  the  court  that  the  fourth  and  fifth  counts,  how- 
ever informal,  have  substance  enough  in  them  to  be  maintained  against 
a  general  demurrer,  and  that  the  judgment  must  be  reversed  and  the 
cause  remanded  for  further  proceedings.  It  will  be  in  the  power  of 
the  circuit  court  to  allow  the  parties  to  amend  their  pleadings. 

Judgment  reversed  accordingly. 


SECTION    10.— INCORPORATION  BY   REFERENCE 


MARDIS'  ADM'RS  v.  SHACKLEFORD. 

(Supreme  Court  of  Alabama,  1844.     6  Ala.  433.) 

This  was  an  action  of  assumpsit  by  the  defendant  in  error,  against 
the  plaintiffs.  The  declaration  contains  eight  counts,  on  the  first  six 
of  which,  issues  of  fact  were  joined,  and  to  the  seventh  and  eighth, 
the  defendants  demurred  seriatim.     *     *     * 

The  eighth  count,  instead  of  describing  the  evidences  of  debt  placed 
in  the  intestate's  hands,  merely  declares  that  they  are  identical  with 
those  mentioned  in  the  third  and  seventh  counts,  and  alleges  that  the 
money  to  be  collected  thereupon,  was  to  be  paid  to  divers  creditors 
of  Burke,  Shackleford  &  Co.,  without  designating  them  in  any  man- 
ner, or  stating  where  their  demands  were  to  be  found.  It  avers  a 
breach  of  the  intestate's  contract  in  toto,  and  as  a  consequence  of  his 
default,  that  the  money  due  the  plaintiff  on  the  evidences  of  debt  was 
wholly  lost  to  him ;  and  that  he  has  been  compelled  to  pay  the  demands 
against  B.  S.  &  Co.  which  the  intestate,  by  his  collections,  was  to  have 
discharged.  This  count  concludes  as  that  which  preceded  it.  The  de- 
murrer to  each  count  was  sustained,  and  the  cause  submitted  to  a 
jury  upon  issues  of  fact  to  the  entire  declaration,  who  returned  a  ver- 
dict for  the  plaintiff,  for  the  sum  of  three  thousand  and  forty-six 
dollars  and  seventy-five  cents;   and  judgment  was  thereupon  rendered. 


Ch.  1)  CONCERXING  SUBSTANCE  437 

CoLLiKR,  C.  J.^^  *  *  *  It  is  objected  to  the  eighth  count,  that 
it  does  not  describe  the  claims  which  the  intestate  received  for  collec- 
tion, but  merely  refers  to  the  third  and  seventh  counts,  and  adopts  the 
description  contained  in  the  third  and  seventh  counts.  The  several 
counts  of  a  declaration  are  regarded  as  its  dififerent  parts  or  sections 
(Step,  on  Plead.  267)  and  in  framing  it,  unnecessar}^  repetition  should 
be  avoided.  This  may  be  done  by  the  counts  referring  to  each  other ; 
but  unless  such  reference  is  made,  one  count  will  not  be  aided  by  an- 
other; "for  though  both  counts  are  in  the  same  declaration,  yet  they 
are  as  distinct  as  if  they  were  in  separate  declarations ;  and  conse- 
quently, they  must  independently  contain  all  necessary  allegations,  or 
the  latter  count  must  expressly  refer  to  the  former."  1  Saund.  on 
Plead,  and  Ev.  417.  In  Rider  v.  Robbins,  13  Mass.  284,  the  first  count 
concluded  that  the  defendant,  "though  often  requested  has  never  paid, 
etc.,  but  neglects  and  refuses,  etc.,"  but  the  second  contained  no  such 
averment  or  any  thing  equivalent :  Held,  that  the  allegation  of  the 
first,  might  be  applied  to  the  second  count.  And  in  Dent's  Adm'r  v. 
Scott,  3  Har.  &  J.  (Md.)  28,  it  was  considered  to  be  sufficient  for  one 
count  to  set  out  a  consideration,  and  for  the  other  counts  seeking  to 
enforce  a  contract  founded  upon  the  same  consideration  to  refer  to  it. 
Each  count  it  was  said,  need  not  contain  a  complete  declaration  in  itself, 
but  by  a  reference  to  another,  its  defects  would  be  supplied.  The  case 
of  Maupay  v.  Holley,  3  Ala.  103,  is  entirely  consistent  with  the  authori- 
ties cited.  That  was  an  action  of  assumpsit,  and  the  declaration  con- 
tained two  counts,  in  each  of  which  the  contract  was  stated  differently. 
The  court  said,  "where  a  declaration  contains  several  counts,  each 
count  is  considered  as  the  statement  of  a  different  cause  of  action ; 
and  where  issue  is  taken  upon  all,  the  plaintiff  is  entitled  to  recover, 
upon  proving  the  allegations  of  either."  The  citations  made  are  di- 
rectly in  point,  and  in  recognizing  them  as  authoritative,  we  necessarily 
attain  the  conclusion  that  the  objection  to  the  eighth  count  is  not  well 
taken.     *     *     *  ^* 

3  3  The  statement  of  facts  is  abridged  and  a  portion  of  tlae  opinion  is  omitted. 

34  Tindal  v.  Moore.  2  Wils.  114  (1760) :  riiillips  v.  Fieldin^r.  2  H.  Bl.  123, 
131  (1792)  (semble) :  Florida,  etc.,  Co.  v.  Foxworth,  41  Fla.  1,  5.5,  25  Sonth.  .338, 
79  Am.  St.  Rep.  149  (1899) :  Columbian  Accident  Co.  v.  Sanford.  50  111.  App. 
424  (1893) ;  lUirbauk  v.  Horn,  39  Me.  233,  235  (1855) ;  Hitchcock  v.  Mun?er, 
15  N.  H.  97  (1844) ;  Crookshank  v.  Grav,  20  Johns.  (N.  Y.)  344  (1823) ;  Fellows 
V.  Chipman,  26  R.  I.  196,  .58  Atl.  663  (1904).     Accord. 

The  reference  must  be  definite  ;  mere  allusion  is  not  sufficient.  Florida,  etc., 
Co.  V.  Foxworth,  41  Fla.  1,  55.  25  South.  338,  79  Am.  St.  Rep.  149  (1899) :  Rose 
V.  Jackson,  40  I\lich.  29  (1879)  ;  Crawford  v.  New  Jersey,  etc.,  Co.,  28  N.  J. 
Law,  479  (18(i0).  If  the  coinit  to  which  reference  i'S  made  fails,  the  reference 
also  fails.  Fraternal  Tribunes  v.  Hanes.  100  111.  App.  1  (1901);  Richardson 
V.  Lanning,  26  X.  J.  Law.  130  (18.56) :  Nelson  v.  Swan.  13  Jolms.  (N.  Y.)  483 
(1816).  Accord.  Anni^ton,  etc.,  Co.  v.  Elwell,  144  Ala.  317,  42  South.  45  (1905) ; 
Cleveland,  etc.,  Co.  v.  Rice,  48  111.  App.  51  (1892).     Contra. 

A  separate  writing  cannot  be  made  a  part  of  a  pleading  by  attaching  it  there- 
to or  by  referring  to  it  therein.  Millisan  v.  Keyser.  52  Flu.  331.  42  South. 
367  (1906) ;    Tearsons  v.  Lee,  1  Scam.  (111.)  193  (1835) ;    Harlow  v.  Boswell,  15 


438  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

SECTION  11.— JUDICIAL  NOTICE 


PEOPLE  ex  rel.  DIXON  v.  SHAW. 
(Supreme  Court  of  Illinois,  1852.     13  111.  581.) 

This  was  a  proceeding-  by  information,  in  the  nature  of  a  quo  war- 
ranto, originally  commenced  in  the  Winnebago  Circuit  Court,  and  re- 
moved to  the  county  of  Stephenson  by  change  of  venue.     =)=     *     * 

Application  for  the  writ  was  made  and  resisted.  At  the  March 
term,  1850,  of  the  Winnebago  Circuit  Court,  the  relator  filed  his  peti- 
tion and  affidavit  for  a  change  of  venue,  alleging  that  the  judge  of  that 
court  was  prejudiced  against  the  relator.  After  hearing  argument, 
the  judge  of  the  Winnebago  Circuit  Court  ordered  the  venue  changed 
to  Stephenson  county.  The  transcript  and  papers,  except  the  peti- 
tion for  the  change  of  venue,  were  filed  in  the  Stephenson  Circuit 
Court,  at  March  term,  1850.  Application  was  then  made  to  the  She- 
phenson  Circuit  Court  for  leave  to  file  the  information ;  the  defendants 
resisted  the  application,  but  the  court  granted  leave  to  file  the  informa- 
tion. The  writ  of  subpoena  was  issued,  and  returned  served.  The  in- 
formation was  filed  at  the  same  term. 

At  September  term,  1851,  the  defendants  entered  their  appearance, 
and  filed  a  plea  that  the  Stephenson  Circuit  Court  ought  not  to  take 
cognizance  of,  or  sustain  the  proceeding  by  quo  warranto,  because  the 
cause  of  action  accrued  in  the  county  of  Winnebago,  and  within  the 
jurisdiction  of  the  Circuit  Court  of  that  county,  and  not  within  the 
jurisdiction  of  the  Stephenson  County  Circuit  Court. 

To  this  plea  the  relator  filed  a  general  demurrer.  After  a  hearing 
upon  the  demurrer,  it  was  overruled,  and  the  court  declined  to  proceed 
further  for  want  of  jurisdiction.  Judgment  was  given  against  the 
relator  for  costs. 

The  counsel  for  the  relator  then  moved  the  court  to  remand  the 
cause  to  Winnebago  county,  which  motion  was  overruled.  The  counsel 
for  the  people  excepted,  and  brought  the  case  to  this  court,  by  writ 
of  error,  for  review. 

CaTon,  J.-^^  The  demurrer  to  the  plea  to  the  jurisdiction  of  the 
court  only  presented  the  question  whether  this  is  a  case  in  which  the 

111  56  (18.5.3) ;  Chicago  Portrait  Co.  v.  Chicago  Crayon  Co.,  118  111.  App.  98,  101 
(1905) ;  Hanover,  etc.,  Co.  v.  Brown,  77  Md.  64,  25  Atl.  989,  27  Atl.  314,  .39 
Am.  St.  Rep.  386  (1893) ;  Ordinary  of  Charleston  v.  Mortimer,  4  Rich.  (S.  C.) 
271  (1S51) ;  Estes  v.  Whipple,  12  Vt.  373,  376  (1840) ;  Cooledge  v.  Continental 
Insurance  Co.,  67  Vt.  14,  27,  30  Atl.  79S  (1894)  ;  Riley  v.  Yost,  58  W.  Va.  213, 
52  S.  E.  40,  1  L.  R.  A.  (N.  S.)  777  (1905).  But  a  schedule  annexed  in  indebitatus 
assumnsit  is  in  some  states  held  to  form  part  of  the  declaration.  Pane  v. 
Babbit,  21  N.  H.  389.  390  (18.50) ;  Rider  v.  Robbins,  13  Mass.  284  (1816) ;  Kinder 
V.  Shaw,  2  Mass.  398,  note  (1807). 

35  The  statement  of  facts  is  abridged  and  a  portion  of  the  opinion  is  omitted. 


Ch.  1)  CONCERNING  SUBSTANCE  439 

relator  could  obtain  a  change  of  venue;  for  the  record  showed  that 
the  venue  had  been  changed,  and  that  estopped  the  party  from  deny- 
ing that  fact  by  a  plea.  It  is  not  competent  for  the  party  to  plead  in 
contradiction  to  the  record  itself  in  the  same  cause.  The  court  must 
take  notice  of  the  contents  of  the  record  of  the  case.^®  Suppose  the 
plea  had  averred  distinctly  that  there  had  been  no  change  of  venue, 
or  had  denied  the  existence  of  some  other  order  which  the  record 
•  showed  had  been  made  in  the  cause,  it  would  be  absurd  to  say  that  the 
plaintiff  should  take  issue  upon  the  plea  and  produce  the  record.  To 
admit  the  party  to  deny  the  existence  of  any  portion  of  the  record  of 
the  cause  at  bar  would  be  something  new  in  pleading.  The  record 
itself  stands  as  a  perpetual  estoppel  to  such  a  plea,  and  the  objection 
may  be  taken  by  demurrer  to  the  plea,  and  perhaps  it  might  be  treated 
as  a  mere  nullity.  This  plea,  then,  cannot  be  considered  as  denying 
that  in  fact  an  order  had  been  made  changing  the  venue  in  the  cause. 
[The  court  then  tr-eated  the  plea  as  presenting  the  question  whether 
the  statute  authorized  a  change'  of  venue  in  such  a  case,  and  held 
that  it  did.] 

Judgment  reversed. ^^ 


SECTION  12.— PARTIAL  DEFENSES 


FLEMMING  v.  ^lAYOR  AND  COUNCIL  OF  CITY  OF 
HOBOKEN. 

(Supreme  Court  of  New  Jersey,  ISTS.     40  X.  J.  Law,  270.) 

In  debt.    Motion  to  strike  out  pleas. 

Dixon,  J.^^  The  declaration  in  this  case  is  founded  on  "improve- 
ment certificates"  of  the  same  character  as  that  in  Knapp  v.  Hoboken, 
39  N.  J.  Law,  394,  and  the  counts  are  also  similar  in  substance  to  those 
of  that  cause. 

The  present  motion  is  to  strike  out  pleas  to  the  third  breach,  as  as- 
signed in  several  counts,  which  is  to  the  eft'ect  that  the  defendants  did 

3  6  That  it  is  unnecessary  to  plead  facts  of  which  the  court  takes  judicial 
notice  is  well  settled.     See  cases  cited  in  12  Ency.  PL  «&  Pr.  1 ;  31  Cyc.  47. 

37  "This  is  declared  to  be  a  public  law,  and,  being  so,  we  are  bound  to  take 
judicial  notice  of  it,  and  to  disregard  all  allegations  in  conflict  with  it."  Cami)- 
bell,  J.,  in  People  v.  River  Raisin,  etc.,  Co.,  12  Mich.  .389,  397,  86  Am.  Dec. 
C4  (1864). 

Where  action  is  brought  for  extra  damages  under  a  statut(;,  all  facts  must 
be  averred  necessary  to  show  the  case  to  be  brouglit  under  the  statute,  and, 
according  to  some  authorities,  specific  reference  to  the  statute  must  be  made. 
Howser  v.  Melcher,  40  :\Iich.  18.',  (1879) ;  Bayard  v.  Smith,  17  Wend.  (N.  Y.) 
88  (1837) ;    5  Ency.  PI.  &  Pr.  727. 

38  A  portion  of  the  opinion  is  omitted. 

Whit.C.L.Pl.— 29 


440  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

not  use  due  diligence  in  making  and  collecting  an  assessment  for  the 
improvement  in  the  certificates  mentioned. 

The  first  plea  attacked  is  pleaded  in  terms  to  so  much  of  that  breach 
in  one  count  as  alleges  that  the  defendants  did  not  use  due  diligence 
in  making  the  assessment,  and  avers  that  the  plaintiff  ought  not  to 
maintain  his  action  therefor,  because  the  defendants  did  use  due 
diligence  in  making  the  assessment. 

The  objection  urged  against  this  plea  is  that  it  does  not  answer  the 
whole  of  the  breach. 

This  does  not  seem  to  me  to  be  a  valid  objection. 

The  plea,  in  its  beginning,  purports  to  answer  only  part  of  the  breach, 
and  that  part,  and  no  more,  it  answers  by  a  denial.  The  part  so  an- 
swered is  severable  from  the  rest  as  a  ground  of  recovery,  the  making 
of  the  assessment  being  quite  distinct  from  its  collection ;  and  it  is 
also  material,  for  it  might  occasion  a  different  measure  of  damages, 
since  only  after  the  assessment  is  made  and  confirmed  does  interest, 
as  such,  begin  to  run  on  the  principal  mentioned  in  the  certificate. 

For  the  propriety  of  such  a  plea  there  is  abundant  authority.  1 
Chitty  on  PI.  523 ;  Steph.  on  PI.  *257 ;  Clarkson  v.  Lawson,  6  Bing. 
587;   McGregor  v.  Gregory,  11  M.  &  W.  287. 

Its  sufficiency  has  been  denied  in  the  courts  of  New  York. 

In  Sterling  v.  Sherwood,  20  Johns.  (N.  Y.)  204,  Spencer,  C.  J.,  sus- 
taining a  demurrer  to  pleas,  censures  the  rule  laid  down  by  Chitty 
and  cites,  as  opposed  to  it,  Riggs  v.  Denniston,  3  Johns.  Gas.  (N. 
Y.)  205,  2  Am.  Dec.  145,  and  the  opinion  of  Willes,  C.  J.,  in  Bully- 
thorpe  V.  Turner,  Willes,  475. 

The  case  of  Riggs  v.  Denniston,  however,  by  no  means  justifies  his 
position,  for  there  the  pleas  condemned  professed  in  their  introduction 
to  answer  the  whole  count,  but  set  up  what  answered  only  part.  Such 
pleas  are  clearly  bad,  and  the  proper  way  to  meet  them  is  by  demurrer. 
Of  the  cases  cited  in  Riggs  v.  Denniston  by  Kent,  J.,  to  support  his 
judgment,  Thornel  v.  Tassels,  Gro.  Jac.  26,  and  Ascue  v.  Sanderson, 
Cro.  Eliz.  433,  were  both  demurrers  to  pleas  manifestly  infected  with 
this  vice;  and  the  other  so  cited,  Garr  v.  Donne,  2  Vent.  193,  seems 
to  be  of  the  same  character,  although  the  report  is  somewhat  obscure. 

The  case  of  Bullythorpe  v.  Turner  (ubi  supra)  is  opposed  to  the 
rule  as  given  by  Ghitty,  but  I  cannot  help  thinking  that  it  rests  upon 
a  misapprehension  of  Thornel  v.  Tassels,,  which  it  improperly  regards 
as  being  contrary  to  Herlakenden's  Gase,  4  Rep.  62,  and  as  holding 
that  a  plea  which  purports  to  answer,  and  answers  only  part  of  a 
count,  must  be  bad.  The  remarks  of  Ghief  Justice  Willes  are  also,  I 
think,  founded  on  error,  for  he  seems  to  suppose  that,  under  the 
rule,  the  defendant  has  only  to  plead  such  a  partial  plea  in  order  to 
drive  the  plaintiff  into  a  discontinuance,  and  he  does  not  distinguish 
between  a  defective  plea  to  the  whole  of  a  count  and  a  valid  plea  to 
part  of  a  count. 


Ch.  1)  CONCERNING  SUBSTANCE  441 

Sterling  v.  Sherwood  was  followed  in  Hickok  v.  Coates,  2  Wend. 
(N.  Y.)  419,  20  Am.  Dec.  632,  Slocum  v.  Despard,  8  Wend.  (N.  Y.) 
615,  ^and  Etheridge  v.  Osborn,  12  Wend.  (N.  Y.)  399;  but  in  the  last 
case,  Judge  Sutherland,  who,  in  8  Wend.  615,  had  followed  Steriing 
V.  Sherwood  without  criticism,  states  that,  if  it  were  an  open  ques- 
tion, he  would  regard  the  rule  laid  down  by  Chitty  as  the  sound 
one,  but  that  the  rule  in  New  York  is  settled  otherwise. 

I  think,  therefore,  that  we  should  adhere  to  the  English  rule.  Nei- 
ther it  nor  its  consequences,  as  usually  stated,  were  at  all  irrational. 
If  the  plea  answer  all  it  professes  to  answer,  and  that  is  a  material 
and  severable  part  of  the  count,  and  no  other  defence  be  interposed  to 
the  rest  of  the  count,  then  the  plaintiff  must  reply  or  demur  to  the  plea ; 
and  as  to  the  part  of  his  count  not  answ^ered,  he  must  enter  judgment 
as  by  nil  dicit,  or  he  will  work  a  discontinuance.  Herlakenden's  Case, 
4  Rep.  62;   Weeks  v.  Peach,  1  Salk.  179.^^ 

If  the  rest  of  the  count  be  elsewhere  answered,  the  plaintiff  cannot 
take  judgment  by  nil  dicit,  for' the  whole  of  his  claim  is  then  put  in 
issue.     Clarkson  v.  Lawson,  6  Bing.  587. 

If  the  plea  profess  to  answer  the  whole  count,  but,  in  its  substance, 
answer  only  part,  the  plaintiff  should  demur,  for  the  plea  is  bad.  Earl 
of  Manchester  v.  Vale,  1  Saund.  27;  and  see  Williams'  notes  to  this 
case ;  Woodward  v.  Robinson,  1  Strange,  302 ;  Everard  v.  Patterson, 
6  Taunt.  625;  Earl  of  St.  Germains  v.  Willan,  2  B.  &  C.  216.*'^ 

This  plea  should  stand. *^ 


SECTION  13.— OVERNARROW  DENIALS 


PHILLIPS  V.  CROSBY. 

(Court  of  Errors  and  Appeals  of  New  Jersey,  1904.     70  N.  J.  Law,  7So,  59 

Atl.  142.) 

SwAYZE,  J.*2  The  declaration  in  this  case  is  extremely  informal, 
but  it  is  possible  to  gather  from  its  averments  that  the  action  is  brought 

3  9  As  to  whether  a  failure  to  enter  judgment  as  hy  nil  dicit  will  work  a  dis- 
continuance, there  is  some  conflict  of  authority.  For  a  full  discu.'ision,  see  IG 
Ency.  PI.  &  Pr.  574-577. 

40  Baldwin  v.  Church,  10  Mod.  323  (1716),  and  numerous  case^  cited  in  31 
Cyc.  140,  note  47.     Accord. 

41  In  addition  to  the  cases  cited  in  the  text,  see  Mitchell  v.  Sellman,  5  Md. 
376,  3S4  (1854),  seniMe ;  Lyman  v.  Dodge,  13  N.  H.  197  (1842),  semble ;  Somer- 
ville  V.  Stewart,  48  N.  J.  Law,  116,  3  Atl.  77  (1SS6) ;  Carpenter  v.  Briggs.  15 
Vt.  34  (1843).  Accord.  Edwards  v.  White,  12  Conn.  28,  36  (1837)  ;  Wilmarth 
V.  Babcock,  2  Hill.  (N.  Y.)  194  (1842) ;  Young  v.  Fentress,  10  Humph.  (Tenn.) 
151  (1849).     Contra. 

4  2  Portions  of  the  opinion  are  omitted. 


442  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

to  recover  damages  for  breach  of  warranty  upon  the  sale  of  stock  in 
an  oil  company.  Phillips  v.  Crosby,  69  N.  J.  Law,  612,  55  Atl.  814. 
There  is  a  single  plea,  which  denies  the  alleged  sale  of  stock,  and  also 
denies  the  making  of  the  warranties  set  forth  in  the  declaration.  Not- 
withstanding the  duplicity  of  the  plea,  the  plaintiff  joined  issue  thereon. 
At  the  close  of  the  case  the  court  ordered  a  nonsuit  upon  the  ground 
that  there  was  a  failure  to  prove  the  amount  of  damages  sustained  by 
the  plaintiff. 

This  was  clearly  erroneous.  If  the  contract  and  the  breach  thereof 
were  proved,  the  plaintiff  was  entitled  to  nominal  damages  at  least. 
Furniture  Company  v.  Board  of  Education,  58  N.  J.  Law,  646,  35 
Atl.  397. 

The  defendant  now  insists  that  the  nonsuit  must  be  sustained  be- 
cause the  plaintiff  failed  to  prove  a  warranty.  *  *  *  The  nonsuit 
cannot  be  sustained  upon  this  ground. 

The  defendant  also  insists  that  there  was  a  failure  to  prove  a  breach 
of  the  alleged  warranty.  This  question  is  not  presented  upon  the 
present  record.  The  declaration  avers  that  the  representations  were 
false.  The  plea  specifically  denied  the  making  of  the  contract,  and  the 
representations.  It  failed  to  deny  the  falsity  of  the  representations. 
The  plea  must,  according  to  the  general  rule  of  pleading,  be  taken  to 
confess  such  traversable  matter  of  fact  as  it  does  not  traverse.  1 
Chitty,  616  (14th  American  Edition).  The  only  issues  upon  the  record 
are  the  making  of  the  contract  and  of  the  representations.     *     *     * 

The  judgment  should  be  reversed,  and  a  venire  de  novo  awarded.'*^ 


BASAN  V.  ARNOLD. 

(Court  of  Exchequer,  1S40.     6  Mees.  &  ^V.  558.) 

Assumpsit  on  a  bill  of  exchange  for  £68.  9s.  at  three  months,  drawn 
by  one  Philip  Lazarus  upon  and  accepted  by  the  defendant,  and  en- 
dorsed by  the  said  Philip  Lazarus  to  J.  C.  Batho,  who  endorsed  the 
same  to  the  plaintiff. 

Pleas — first     *     *     *  .     secondly.     *  . 

The  defendant  pleaded,  thirdly,  that,  after  the  said  bill  was  en- 
dorsed to  the  plaintiff",  and  before  the  commencement  of  this  suit,  to 
wit,  on  the  29th  of  July,  1839,  he  the  plaintiff  endorsed  the  said  bill, 
upon  good  and  sufficient  consideration,  to  a  certain  person  whose  name 
is  to  the  defendant  unknown,  and  the  defendant  then  became  and  still 
is  liable  to  pay  the  amount  of  the  said  bill  to  the  said  person  to  whom 

43  Savage  v.  Walshe,  2G  Ala.  619,  638  (1S55) ;  Taylor  v.  Spears,  6  Ark.  3S1. 
44  Am.  Dec.  519  (1850);  Supreme  Lodge  v.  Lipscomb.  50  Fla.  406,  416,  30 
South.  637  (1905) ;  Simmons  v.  Jenkins.  76  111.  479,  482  (1875) ;  Union  Bank 
V.  Ridselv,  1  Har.  &  G.  (Md.)  324.  415  (1827) ;  Ayer  v.  Spring.  10  Mass.  80,  83 
(1813) ;   Morris  v.  Corson,  7  Cow.  (N.  Y.)  281  (1827) ;   31  Cyc.  207,  208.     Accord. 


Ch.  1)  CONCERNING  SUBSTANCE  443 

it  was  so  endorsed,  and  who  from  the  time  of  that  endorsement  hitherto 
has  been  and  is  the  holder  thereof ;  and  this  the  defendant  is  ready 
to  verify,  &c. 

To  the  second  plea  the  plaintiff  replied  de  injuria;  and  to  the  third 
he  replied  that  at  the  time  of  the  commencement  of  this  suit  the  plain- 
tiff was,  and  still  is,  the  holder  of  the  said  bill;  without  this,  that 
any  other  person  is  the  holder  thereof,  in  manner  and  form  as  in  that 
plea  is  alleged. 

To  both  these  replications  the  defendant  demurred,  and  assigned 
the  following  causes ;  *  ^-  *  To  the  replication  to  the  last  plea, 
that  the  special  traverse,  being  the  concluding  part  of  the  said  replica- 
tion to  the  last  plea,  which  is  the  part  thereof  which  professes  to  take 
issue  on  the  plea,  does  not  put  in  issue  the  allegation  contained  therein, 
that  such  other  person  was  the  holder  of  the  bill  at  the  time  of  the 
commencement  of  the  suit,  or  of  the  plea  being  pleaded,  but  seeks  to 
raise  an  issue  whether  any  other  person  was  such  holder  at  the  date 
of  the  said  replication.  That  i-f  the  said  replication  puts  in  issue  the 
fact,  whether  any  other  person  than  the  plaintiff'  were  such  holder  at 
the  time  of  such  plea  being  pleaded,  the  issue  thereby  raised  is  im- 
material. That  if  the  plaintiff  intended  to  rely  on  the  allegation  in 
the  replication,  that  the  said  plaintiff  was,  at  the  time  of  the  com- 
mencement of  the  suit,  and  still  is,  the  holder  of  the  said  bill  of  ex- 
change, the  plaintiff  should  not  have  pleaded  the  same  as  inducement 
to  the  special  traverse,  but  should  have  concluded  to  the  country,  with 
the  addition  of  such  special  traverse.  And,  further,  that  the  plaintiff, 
in  the  said  replication,  hath  so  replied  as  to  leave  the  said  defendant 
in  doubt  as  to  the  part  of  the  said  replication  on  which  the  plaintiff 
means  to  take  issue,  and  that  the  said  traverse  is  double  and  imma- 
terial. 

Joinder  in  demurrer.** 

Parkin,  B.  The  replication  would  make  it  necessary  for  the  defend- 
ant to  show  not  only  that  the  plaintiff  was  not  the  holder  at  the  com- 
mencement of  the  action,  but  that  he  was  not  so  at  the  time  of  the  plea 
pleaded.  The  allegation  is  that  no  other  person  is  the  holder  thereof ; 
such  a  traverse  is  too  large,  because  it  makes  it  incumbent  on  the  de- 
fendant to  show  that  another  person,  and  not  the  plaintiff,  was  the 
holder,  both  at  the  commencement  of  the  action  and  at  the  time  of  the 
plea  being  pleaded.  The  latter  fact  is  immaterial,  and  therefore  the 
replication  is  bad.  I  think  the  word  "is"'  refers  to  the  time  of  the 
plea  pleaded.  Both  parties  may  have  leave  to  amend,  otherwise  there 
must  be  judgment  for  the  plaintiff'  on  the  replication  de  injuria,  and 
for  the  defendant  on  the  replication  to  the  third  plea. 

AldERSON,  B.     I  am  of  opinion  that  the  replication  to  the  third 

44  The  statement  of  facts  is  abridged. 


444  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

plea  is  bad.    The  plaintiff  has  pleaded  in  such  a  way  as  to  compel  the 
defendant  to  prove  that  which  is  immaterial. 

The  rest  of  the  court  concurred. 

Leave  to  amend  accordingly.*''" 


TATEM  &  POULTER  v.  PERIENT. 

(Court  of  King's  Bench,  1611.     Yelv.  195.) 

The  defendant  granted  to  the  plaintiffs  1000  trees  in  such  a  wood 
to  be  cut  down  within  three  years  after  the  grant;  and  afterwards 
they  agreed,  when  the  plaintiffs  had  cut  down  some  of  the  trees,  that 
they  should  not  fell  any  more  during  the  three  years,  and  that  the 
defendant  would  licence  them  after  the  three  years  to  fell  as  many 
trees  as  amounted  to  the  full  number  of  1000,  and  because  the  de- 
fendant hindered  them  after  the  three  years  from  felling  the  trees 
they  brought  assumpsit,  and  declared  and  shewed  the  grant  afore- 
said; and  that  in  consideration  they  would  forbear  the  felling  any 
more  trees  till  after  the  three  years,  the  defendant  promised  to  give 
licence  to  the  plaintiffs  to  fell  as  many  trees  there  after  the  three 
years  as  amounted  to  1000,  and  alleged  in  facto  that  at  the  time  of 
the  promise  they  had  cut  down  but  800  trees,  and  non  amplius,  and 
that  they  relying  on  the  promise  had  forborn  to  fell  any  more  with- 
in the  three  years,  and  that  after  the  three  years  the  defendant  hin- 
dered them  from  selling  the  residue,  which  made  1000  trees,  to  their 
damage,  etc.  The  defendant  pleaded  that,  before  the  promise  sup- 
posed to  be  made  by  the  defendant,  the  plaintiffs  had  felled  1000  trees, 
absque  hoc,  that  at  the  time  of  the  promise  they  had  felled  but  800 
trees  only,  etc.,  and  thereupon  the  plaintiffs  demurred.  And  it  was 
adjudged  against  the  plaintiffs;  yet  it  was  objected,  that  the  traverse 
was  insufficient  and  idle,  for  the  defendant's  plea  had. been  good 
without  any  traverse  at  all;  for  it  was  a  full  answer  to  say  that  they 
had  felled  1000  trees,  without  more,  and  that  would  make  an  issue. 
2.  The  traverse  ought  to  have  been,  absque  hoc,  that  the  plaintiffs 
at  the  time  of  the  promise  had  felled  but  800  trees,  omitting  the 
(only)  for  the  alleging  of  that  in  the  declaration  was  but  to  increase 
damage,  and  not  matter  of  substance  as  to  the  action.  But  per  totam 
curiam  the  traverse  is  good,  for  the  plaintiffs  by  alleging  the  felling  of 
800  trees  only  in  their  declaration,  which  is  a  matter  issuable,  have 
given  the  defendant  advantage  to  traverse  in  the  manner  as  he  hath 
done;     for    every   matter   in    fact   alleged   by   the   plaintiffs   may   be 

4  5  ]\ioore  V.  Boulcott,  1  Bing.  N.  C.  323  (1S34) ;  Thurman  v.  Wild,  11  A.  &  E. 
453  (1840) ;  Cassadv  v.  Clarke,  7  Ark.  123,  131  (1S51) ;  Sydam  v.  Cannon,  1 
Houst.  (Del.)  431  (1S57) ;  Marx  v.  Culpepper,  40  Fla.  322,  24  South.  59  (1S9S) ; 
Graham  v.  Dixon,  3  Seam.  (111.)  115,  117  (1S41) ;  Yingling  v.  Hoppe,  9  Gill.  (Md.) 
310,  314  (1S50).     Accord. 


Ch.  1)  CONCERNING  SUBSTANCE  445 

traversed  by  the  defendant,  and  the  defendant  by  way  of  traverse  may 
answer  the  matter  alleged  in  the  same  words  the  plaintiffs  allege  them, 
and  then  the  plaintiffs  have  by  their  demurrer  on  the  bar  confessed 
the  felling  of  1000  trees,  which  was  their  full  bargain  at  first,  and  by 
consequence  there  is  no  consideration  on  which  to  ground  the  promise. 
Quod  nota.  By  all  the  JuSTiciJS.  Yelverton  was  of  counsel  with  the 
defendant.*^ 


SECTION  14.— NEGATIVE  PREGNANT 


HOWK  V.  POLLARD. 
(Supreme  Court  of  Indiana,  1841.     6  Blackf.  108.) 

Blackf^ord,  J.*^  This  was  an  action  of  debt  brought  by  Pollard, 
assignee,  etc.,  on  a  sealed  note  for  the  payment  of  money. 

Three  pleas :  1.  Actio  non.  The  note  was  given  in  consideration, 
that  the  payees  would  assign  to  the  defendant  certain  certificates  for 
three  tracts  of  land,  each  tract  containing  eighty  acres.  Averment, 
that  the  tracts  of  land  did  not  contain  eighty  acres  each,  etc.  Where- 
fore, etc.  2.  Actio  non.  The  consideration  of  the  note  was  as  stated 
in  the  first  plea.  Averment,  that  the  payees  did  not  assign  the  certif- 
icates for  the  tracts  of  land  containing  eighty  acres  each,  Wherefore, 
etc.  3.  As  to  400  dollars  part,  etc.,  no  consideration  as  to  that  part. 
*     *     * 

The  second  plea  tenders  an  informal  issue,  and  may  therefore  be 
specially  demurred  to.  The  traverse  in  that  plea,  that  the  vendors  had 
not  assigned  the  certificates  for  tracts  of  land  containing  eighty  acres 
each,  is  too  large.  The  plea  is  a  negative  pregnant.  It  implies  that 
the  certificates  for  the  tracts  containing  less  than  eighty  acres  each 
had  been  assigned;  and  that  implication  destroys  the  eft"ect  of  the 
plea  as  a  bar  to  the  whole  cause  of  action. 

The  replication  to  the  third  plea  is  also  objectionable.     The  circum- 

4  6  Ixjke's  Case,  3  Dyer,  .365  (1579) ;  Cockerill  v.  Armstrong.  Willes  99.  10.3 
(1738) ;  Carvick  v.  Blagrave,  1  Brod.  &  Bing.  531  (1820) :  Dorn  v.  Gashford,  1 
Com.  44  (1698) :  Curtis  v.  Spetty,  1  Bing.  N.  C.  756  (1835) ;  Smitli  v.  Dixon, 
7  A.  &  E.  1  (1837).  Accord.  The  same  principle  is  applied  in  the  following 
cases:  Stewart  v.  Tucker,  106  Ala.  319.  17  South.  385  (1895);  Wilkinson  v. 
Pensacola  Co.,  35  Fla.  82,  17  South.  71  (1S05) ;  Gridley  v.  Bloomington.  68  111. 
47  (1873) ;  Jerome  v.  Whitney,  7  Johns.  (N.  Y.)  321  (1811).  See,  also,  Stephen 
Pleading  (Williston's  Ed.)  *282,  *283 :  2  Wm.'s  Saund.  200a,  note  22.  l^ut 
see  Osborne  v.  Rogers,  1  Wm.'s  Saund.  267  (1670) ;  Palmer  v.  Ekins,  2  Str. 
817  (1728). 

47  A  portion  of  the  opinion  is  omitted. 


44G 


PRINCIPLES   OF   GENERAL  APPLICATION 


(Part  3 


stance  that  this  plea  is  only  pleaded  to  a  part  of  the  cause  of  action 
seems  to  have  been  overlooked  by  the  plaintiff. 

FtR  Curiam.     The  judgment  is  reversed  with  costs.     Cause  re- 
manded, etc.*® 


SECTION  15.— INCONSISTENCY 


SEAL  V.  VIRGINIA  PORTLAND  CEMENT  CO. 

(Supreme  Court  of  Appeals  of  Virginia,  1908.     108  Va.  806,  62  S.  E.  795.) 

Harrison,  J.*^  In  this  case  the  plaintiff  has  set  forth  his  _cause 
of  action  in  a  declaration  containing  three  counts.  The  defendant  com- 
pany demurred  to  the  declaration  and  to  each  count  thereof,  and  the 
circuit  court  sustained  the  demurrer,  upon  the  ground  that  the  second 
count  was  repugnant  to  the  first  and  third  counts,  and  dismissed  the 
case. 

This  was  manifest  error.  The  alleged  repugnancy  consisted  in  the 
statement  in  the  first  and  third  counts  that  the  defendant,  after  its 
attention  was  called  to  the  danger,  promised  to  remedy  it,  and  the 
statement  in  the  second  count  that  it  assured  the  plaintiff  that  there 
was  no  danger  and  directed  him  to  continue  the  work.  Had  these  two 
allegations  appeared  in  one  and  the  same  count,  as  occurring  at  one 
time,  they  would  have  been  inconsistent  and  repugnant.^ °    Each  count, 

4  8  Robsert  v.  Andrews,  Cro.  Eliz.  82  (1588) ;  Myn  v.  Gole,  Cro.  Jac.  87  (1606) ; 
1  Chittv  (16  Am.  Ed.)  550;  31  Cyc.  203-205.  Accord.  See  Jones  v.  Joues,  16 
Mees.  &  W.  699..  707-710  (1847),  for  a  full  discussion  of  the  doctrine. 

"It  is  under  this  head  of  ambiguity  that  the  doctrine  of  negatives  pregnant 
appears  most  properly  to  arrange  itself.  A  negative  pregnant  is  such  a  fonn 
of  negative  expression  as  may  imply  or  carry  within  it  an  aflirmative.  Thisi 
is  considered  as  a  fault  in  pleading ;  and  the  reason  why  it  is  so  considered 
is  that  the  meaning  of  such  a  form  of  expression  is  ambiguous.  In  trespass 
for  entering  the  plaintiff's  house,  the  defendant  pleaded  that  the  plaintiff's 
daughter  gave  him  license  to  do  so,  and  that  he  entered  by  that  license.  The 
plaintiff  replied  that  he  did  not  enter  by  her  license.  Tliis  was  considered  as 
a  negative  pregnant ;  and  it  was  held  that  the  plaintiff  should  have  traversed 
the  entry  by  it-self,  or  the  license  by  itself,  and  not  both  together.  It  .will  be 
observed  that  this  traverse  might  imply  or  carry  within  it  that  a  license  waw 
given,  though  the  defendant  did  not  enter  by  that  license.  It  is,  therefore, 
in  the  language  of  pleading,  said  to  be  pregnant  with  that  admission,  viz. 
that  a  license  was  given.  At  the  sanje  time  the  license  is  not  expi-essly  ad- 
mitted ;  and  the  effect,  therefore,  is  to  leave  it  in  doubt  whether  the  plaintiff 
means  to  deny  the  license,  or  to  deny  that  the  defendant  entered  by  virtue  of 
that  license.  It  is  this  ambiguity  which  appears  to  constitute  the  fault." 
Stephen,  Pleading  (Williston's  Ed.)  *419,  420.  See,  also,  Id.  appendix  *xci, 
note  55. 

49  A  portion  of  the  opinion  is  omitted. 

50  Merrill  v.  Sheffield  Co.,  169  Ala.  242,  53  South.  219  (1910) ;  Florida,  etc., 
Co.  V.  Ashmore,  43  Fla.  272,  283.  32  South.  832  (1902) ;  Keeshan  v.  Elgin,  etc., 
Co.,  132  111.  App.  416  (1907);  Hersey  v.  Northern  Assurance  Co..  75  Yt.  441, 
446,  56  Atl.  95  (1903)  ;  Greaves  v.  Neal  (C.  C.)  57  Fed.  816.  820  (1893).  Accord. 
Cf.  Dick  V.  McPherson,  72  N.  J.  Law,  332,  62  Atl.  383  (1905). 


Ch.  1)  CONCERNING  SUBSTANCE  447" 

however,  is  a  separate  declaration,  and  the  plaintiff  has  the  right  to 
present  his  case  with  such  variation  of  statement  as  he  thinks  neces- 
sary to  meet  every  possible  phase  of  the  testimony.  This  is  one  of  the 
objects  and  purposes  of  adding  several  counts,  so  that,  if  the  plaintiff 
fails  in  the  proof  on  one  count,  he  may  succeed  in  another  and  thereby 
prevent  a  fatal  variance.  B.  &  O.  R.  Co.  v.  Whittington's  Adm'r,  30 
Grat.  805,  811 ;  New  River  M.  Co.  v.  Painter,  100  Va.  507,  510,  42  S. 
E.  300;    Barton's  Law  Pr.  vol.  1,  p.  300. 

It  is  the  universal  practice  in  this  state,  in  tort  cases,  for  the  plaintiff 
to  present  his  case  in  different  counts,  varying  his  statements  in  each 
count  to  meet  the  different  phases  of  the  testimony  at  the  trial ;  and  the 
action  of  the  circuit  court  in  sustaining  the  demurrer  to  the  declaration, 
upon  the  ground  of  repugnancy  between  the  counts,  was  contrary  to 
this  general  practice  and  to  the  decisions  of  this  court.     *     *     *  si 


PRIEST  V.  DODSWORTH. 

(Supreme  Court  of  Illinois,  190S.     2.35  111.  G13,  85  N.  E.  940,  14  Ann.  Cas.  340.) 

Farme;r,  J. ^2  This  was  an  action  of  assumpsit,  brought  by  appellee 
(hereafter  referred  to  as  plaintiff)  against  the  appellants  (hereafter 
referred  to  as  defendants),  to  recover  the  balance  due  on  a  promissory 
note  given  for  the  principal  sum  of  $4,000.  Plaintiff  is  a  lawyer,  and 
at  the  time  the  note  was  given  was  practicing  his  profession  in  Jack- 
sonville, 111.,  and  the  note,  it  is  claimed  by  him,  was  given  for  services 
rendered  at  the  time  the  note  was  given  and  to  be  thereafter  rendered 
as  attorney.  The  case  was  tried  before  the  court  without  a  jury,  and 
resulted  in  a  judgment  in  favor  of  plaintiff  for  $1,895.56.  Defendants 
prosecuted  an  appeal  to  the  Appellate  Court  for  the  Third  District, 
where  the  judgment  of  the  circuit  court  was  affirmed,  and  they  have 
brought  the  case  to  this  court  by  further  appeal.     *     *     * 

It  is  contended  that  the  court  erred  in  overruling  the  demurrer  of 
defendants  to  the  fourteenth  replication,  as  amended,  to  the  first  plea 
of  J.  R.  Dodsworth.  This,  as  we  have  said,  was  a  plea  of  failure  of 
consideration.  In  substance,  it  averred  that  the  consideration  for  the 
note  was  the  agreement  of  plaintiff  that  he  would  successfully  defend 
and  maintain  defendant's  (J.  R.  Dodsworth's)  title  to  and  possession 
of  $84,000  in  notes  given  him  by  his  grandmother,  and  that  if  he  (plain- 
tiff) failed  to  do  this  he  would  return  to  said  defendant  said  note; 
that,  by  reason  of  the  timidity,  negligence,  and  carelessness  of  plain- 
tiff in  maintaining  said  defendant's  rights,  defendant  lost  title  to  and 

51  White  V.  Snell.  9  Pick.  (Mass.)  IG  (1829)  ;  Berringer  v.  Cobb,  58  Mich. 
557,  25  N.  W.  491  (1885) ;  Barton  v.  Gray.  48  Mich.  1G4,  167,  22  N.  W.  30  (1SS2). 
Accord.     Cf.  MuUaly  v.  Austin,  97  Mass.  30,  33  (18(57). 

52  A  portion  of  the  opinion  is  omitted. 


448  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

possession  of  notes  of  the  value  of  $69,000,  whereby  the  consideration 
for  the  note  sued  on  wholly  failed.  By  the  amended  fourteenth 
replication  plaintiff  denied  that  the  consideration  for  the  note  failed,  as 
alleged  in  the  plea,  and  denied  that  it  was  to  be  returned  if  he  failed 
to  successfully  defend  J.  R.  Dodsworth's  title  to  the  notes.  It  also 
set  out  with  much  detail  the  history  of  the  trouble  between  the  mem- 
bers of  the  Dodsworth  family,  the  litigation  growing  out  of  it,  the  em- 
ployment of  plaintiff,  the  circumstances  attending  the  giving  of  the 
note,  and  the  purposes  for  which  it  was  given,  and  the  services  rendered 
by  the  plaintiff  in  the  controversy.  It  also  sets  out  with  much  par- 
ticularity a  compromise  of  all  controversies  between  the  parties,  effect- 
ed by  plaintiff,  and  consented  and  agreed  to  by  J.  R.  and  W.  C.  Dods- 
worth and  their  sister.  Prudence,  by  which  they  obtained  title  to  about 
$90,000  worth  of  their  grandmother's  property. 

The  demurrer  to  this  replication,  we  think,  should  have  been  sus- 
tained. It  is  both  a  traverse  and  a  confession  and  avoidance.  The 
issue  tendered  by  the  plea  was  that  plaintiff  failed  to  keep  and  perform 
his  agreement  to  successfully  defend  J.  R.  Dodsworth's  title  to  the 
notes,  but  negligently  and  carelessly  failed  in  this  regard,  whereby 
the  consideration  for  the  note  in  suit  failed.  If  the  replication  had 
admitted  that  the  consideration  for  the  note  was  the  agreement  set  out 
in  the  plea,  and  sought  to  avoid  it  by  setting  up  a  compromise  and  set- 
tlement of  the  litigation  by  mutual  agreement  between  the  parties,  the 
facts,  or  some  of  them,  alleged  in  the  replication  would  have  been 
proper ;  but  as  the  replication  denies  that  the  consideration  for  the 
note  was  as  averred  in  the  plea,  and  denies  that  it  failed,  the  aver- 
ments as  to  the  compromise  of  the  controversy  between  the  parties, 
and  of  plaintiff's  services  therein,  meet  no  issue  tendered  by  ithe  plea. 
A  party  may  file  as  many  pleas  or  replications  as  he  'chooses,  and  they 
may  be  inconsistent  with  each  other;  ^^  but  each  pleading  must  be 
complete  and  consistent  with  itself,  and  must  answer  the  pleading  it 
is  intended  as  an  answer  to.    If  it  is  desired  to  put  in  issue  the  truth 

63  Repugnancy  between  pleas  Is  generally  no  ground  for  objection.  Peoria, 
etc.,  Co.  V.  Barton,  38  111.  App.  469  (1890);  Miller  v.  Stanley,  186  111.  App. 
340  (1914) ;  Union  Bank  v.  Ridgely,  1  Har.  &  G.  (Md.)  324,  406  (1827) ;  INIerry 
V.  Gay,  3  Pick.  (Mass.)  388  (1826) ;  True  v.  Pluntoou,  54  N.  H.  121  (1873) ;  Sliall- 
cross  V.  West  Jersey,  etc.,  Co.,  75  N,  J.  Law,  395,  67  Atl.  931  (1907);  Shuter 
V.  Page,  11  Johns.  (N.  Y.)  196  (1814)  ;  Ferber  v.  Gazette,  etc.,  Ass'n,  212  Pa. 
367,  01  Atl.  9.39  (1905).  See,  also.  Granite  State  Bank  v.  Otis,  53  Me.  133 
(186.5) ;  Waller's  Ex'rs  v.  Ellis,  2  Munf.  (Ya.)  88  (1810).  Cf.  Pope  v.  Latham, 
1  Ark.  66  (1845).  But  a  plea  which  admits  a  cause  of  action  and  plaiutilf's 
right  to  maintain  it  cannot  be  joined  with  one  absolutely  denying  same. 
O'Meara  v.  Cardiff  Coal  Co.,  154  111.  App.  321  (1910:  general  issue  and  ten- 
der) ;  Union  Bank  v.  Ridgely,  1  Har.  &  G.  (IMd.)  324,  407  (1827 :  semble,  gen- 
eral issue  and  tender) ;  Shombeck  v.  De  La  Cour,  10  East,  326  (1808 :  tender 
and  alien  enemy) ;  31  Cyc.  148,  note  19.  Under  statute  of  4  and  5  Anne,  c.  16, 
leave  of  court  was  required  to  file  more  than  one  plea,  and  this  leave  was  at 
first  refused  where  the  proposed  pleas  were  inconsistent.  See  Chapman  v. 
Sloan,  2  N.  H.  464  (1822) ;  Peters  v.  Ulmer,  74  Pa.  402  (1873) ;  Fox  v.  Chandler, 
W.  Bl.  905  (1773) ;  Arnold  v.  Bass,  W.  Bl.  993  (1775) ;  Stephen,  PI.  (Williston's 
Ed.)  *310. 


I 


Ch.  1)  CONCERNING  SUBSTANCE  449 

of  the  allegations  of  a  plea,  this  is  done  by  a  denial  of  them,  called  a 
"traverse."  If  this  is  not  desired,  but  it  is  desired  to  set  up  matter  in 
justification  or  in  excuse,  this  must  be  done  by  way  of  confession  and 
avoidance.  While  the  plaintiff  may  in  one  replication  traverse  a  plea 
and  in  another  confess  and  avoid,  the  two  defenses  are  repugnant,  and 
cannot  be  embraced  in  the  same  replication.  Stephen's  PI.  137;  1 
Chitty's  PI.  623;  1  Tidd's  Pr.  684.  The  necessity  for  this  rule  of 
pleading  and  its  observance  is  manifest,  for  the  reason  that  evidence 
may  be  admissible  under  a  traverse  that  would  be  incompetent  under  a 
confession  and  avoidance,  and  vice  versa. 

We  are  of  opinion  the  circuit  court  erred  in  overruling  the  demurrer 
to  the  fourteenth  replication  to  the  first  plea  of  J.  R.  Dodsworth.  The 
judgment  of  the  circuit  court,  and  of  the  Appellate  Court,  affirming 
the  judgment  of  the  circuit  court,  will  therefore  be  reversed,  and  the 
cause  remanded  to  the  circuit  court. 

Reversed  and  remanded.^* 


WHITAKER  V.  FREEMAN. 

(Circuit  Court,  District  of  North  Carolina,  1S27.     Fed.  Cas.  No.  17,527a,  29 

Fed.  Cas.  955.) 

Marshall,  Chief  Justice.^^  This  is  an  action  on  the  case  founded 
in  a  libel  published  by  the  defendant.  He  has  pleaded  not  guilty,  and 
also  justified  the  words  as  being  true.  At  the  trial,  the  plaintiff  gave 
in  evidence  a  letter  written  by  the  defendant  to  his  correspondent  in 
Raleigh,  for  the  purpose  of  being  shewn  to  others,  which  contains  sub- 
stantially the  charges  stated  in  the  declaration,  but  in  different  lan- 
guage. The  plaintiff  insisted  at  the  trial — 1st,  that  the  plea  of  justifica- 
tion admitted  the  publication  of  the  libel  charged  in  the  declaration 
and  dispensed  with  the  necessity  of  proving  it;  2dly,  that  the  letter 
given  in  evidence  supported  the  declaration.  The  jury  found  a  verdict 
for  the  plaintiff,  subject  to  the  opinion  of  the  court  on  the  two  points 
reserved. 

1.  On  the  first  point  the  plaintiff  produced  cases  to  show  that  the 
plea  of  justification  contains  a  formal  admission  of  the  words  charged 
in  the  declaration,  and  would  not  be  good  without  such  admission.  It 
must  confess  and  avoid  the  charge.  He  then  insisted  that  this  being  a 
confession  on  record  was  stronger  than  a  confession  made  orally  in 
the  country,  and  estopped  the  party  from  denying  it.     In  support  of 

54  Keokuk,  etc.,  Bridge  Co.  v.  Wetzel,  228  111."  253,  81  N.  E.  SG4  (1907); 
Farmers,  etc..  Co.  v.  Koons,  120  111.  App.  .ms  (1905) ;  IMix  v.  People,  92  111. 
549,  553  (1879) ;  Wright  v.  Card,  16  R.  I.  719,  19  Atl.  709  (1890).  Accord.  Cf. 
Smith  V.  Yeomans,  1  Sauud.  316  (1670) ;  Hapgood  v.  Iloughtou,  8  Pick.  (Mass.) 
451  (1829). 

5  5  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


450  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

this  last  proposition  he  relied  on  the  generally  admitted  dignity  of 
record  evidence,  and  cited  Goddard's  Case,  2  Coke,  4,  6.  In  Goddard's 
Case  the  court,  after  saying  that  the  jurors,  who  are  sworn  to  say  the 
truth,  shall  not  be  estopped,  for  an  estoppel  is  to  conclude  one  to  say 
the  truth,  added:  "But  if  the  estoppel  or  admittance  be  within  the 
same  record  in  which  issue  is  joined  upon  which  the  jurors  shall  give 
their  verdict,  then  they  cannot  find  anything  against  that  which  the 
parties  have  affirmed  and  admitted  of  record,  although  the  truth  be 
contrary,  for  a  court  ought  to  give  judgment  upon  a  thing  confessed 
by  the  parties,  and  the  jurors  are  not  to  be  charged  with  any  such 
thing,  but  only  with  things  in  which  the  parties  differ."  In  Goddard's 
Case,  as  was  very  properly  remarked  by  the  counsel  for  the  defend- 
ant, there  was  a  single  plea,  and  the  admission  and  agreement  of  par- 
ties, to  which  the  observation  of  the  court  applies,  are  made  in  the 
particular  and  single  issue  which  the  jury  was  sworn  to  try.  The  lan- 
guage of  the  court  is  applicable  to  such  a  case  only.  The  jury,  though 
not  generally  "estopped  to  say  the  truth,  is  estopped  if  the  admittance 
be  within  the  same  record  in  which  issue  is  joined  upon  which  the 
jurors  shall  give  their  verdict."  When  this  case  was  decided  a  record 
contained  a  single  issue,  and  the  word  "record"  might  be  used  general- 
ly in  the  same  sense  with  the  word  "issue."  The  relative  "which," 
in  the  last  instance,  refers  to  "issue,"  upon  which  issue  the  jurors 
shall  give  their  verdict.  This  is  proved  clearly  by  the  reason  the  court 
assigns  why  a  jury  is  estopped  from  finding  the  truth  contrary  to  such 
admission.  It  is  that  "a  court  ought  to  give  judgment  upon  a  thing 
confessed  by  the  parties,  and  the  jurors  are  not  to  be  charged  with 
any  such  thing."  Now,  the  jurors  are  charged  with  every  issue  of  the 
cause,  and  must  pass  on  every  issue.  The  court  cannot  give  judgment 
until  a  verdict  is  found  on  each.  Indeed,  I  do  hot  understand  the 
plaintiff"  to  contend  that  the  admission  in  one  plea  estops  the  jury  from 
finding  the  truth  in  an  issue  made  upon  different  plea ;  but  that  the 
admissions  in  one  plea  may  be  given  in  evidence  in  support  of  a  differ- 
ent issue  in  the  same  cause.  Goddard's  Case,  then,  turns  on  a  principle 
entirely  distinct  from  this,  and  inapplicable  to^  it.  In  Kirk  v.  Nowill,  1 
Term  R.  118,  Buller,  J.,  said  that  several  pleas  in  the  same  cause  were 
"as  unconnected  as  if  they  were  in  separate  records."  In  England, 
under  the  statute  of  4  and  5  Anne,  c.  16,  the  defendant  is  allowed  to 
plead  several  pleas  with  leave  of  the  court.  In  commenting  upon  this 
statute.  Bacon  says,  in  his  Abridgment  (volume  5,  p.  448) :  "It  hath 
been  frequently  insisted  upon  that  a  defendant  could  not,  within  this 
act,  plead  contradictory  and  inconsistent  pleas,  as  non  assumpsit  and 
the  statute  of  limitations,  etc."  But  the  court  has  allowed  such  pleas, 
"observing  that,  if  the  benefit  of  the  statute  was  to  be  confined  to  such 
pleas  as  are  consistent,  it  would  hardly  be  possible  to  plead  a  special 
plea  and  a  general  issue,  the  one  always  denying  the  charge,  the  other 
generally  confessing  and  avoiding  it,  and  the  statute  itself  makes  no 


Ch.  1)  CONCERNING  SUBSTANCE  451 

distinction  herein."  In  conformity  with  this  rule  the  English  hooks  on 
the  subject  of  pleading  in  all  their  forms  of  special  pleas  state  the 
general  issue  as  being  first  pleaded.  This  would  be  entirely  useless  if 
the  admissions  contained  in  almost  every  special  plea  in  bar  could  be 
used  to  disprove  the  facts  alleged  in  the  general  issue.  The  English 
books  do  not,  I  believe,  furnish  a  decision,  or  even  a  dictum,  to  coun- 
tenance the  idea  that  the  matter  of  one  plea  can  be  brought  in  evidence 
against  another.  Their  entire  independence  of  each  other  has  been 
often  held.  In  Grills  v.  Mannell,  Willes,  378,  the  attempt  was  to  aid 
one  plea,  to  which  a  demurrer  had  been  filed,  by  an  averment  in  a  sub- 
sequent plea.  Lord  Chief  Justice  Willes,  in  delivering  the  opinion  of 
the  court,  said :  Though  he  has  denied  it  in  his  second  plea  (that  the 
opposite  party  was  seised  in  fee),  that  will  make  no  alteration,  it  being 
a  known  rule,  and  never  controverted,  that  one  plea  cannot  be  taken 
in  to  help  or  destroy  another,  but  every  plea  must  stand  or  fall  by 
itself.  This  opinion  undoubtedly  applies  to  the  sufficiency  of  a  plea 
in  point  of  law.  It  asserts  that' one  plea  cannot  be  affected  in  point 
of  law  by  a  fact  averred  in  a  different  plea,  not  that  such  facts  may  not 
be  used  as  evidence,  but  it  shows  that  the  distinct  pleas  in  the  same 
cause  are  entirely  independent  of  each  other,  and  have  no  technical  con- 
nexion. The  same  principle  is  laid  down  in  the  case  of  Kirk  v.  Nowill, 
1  Term  R.  118.  That  was  an  action  of  trespass,  in  which  the  general 
issue  and  three  special  pleas  in  bar  were  pleaded.  The  jury  found 
three  issues  for  the  plaintiff'  and  the  last  for  the  defendant.  The  plain- 
tiff obtained  a  rule  to  show  cause  why  judgment  should  not  be  entered 
up  in  his  favor,  because  the  last  plea  on  which  the  verdict  was  found 
for  the  defendant  was  no  bar  to  the  action.  The  defect  in  the  fourth 
plea  was  cured  by  an  averment  in  the  second  and  third ;  but  the  court 
made  the  rule  absolute ;  and  Duller  said :  "There  never  was  such  an 
idea  before,  as  the  counsel  against  the  rule  have  suggested  that  one 
plea  might  be  supported  by  what  was  contained  in  another.  Each  plea 
must  stand  or  fall  by  itself." 

It  is  admitted  that  these  cases  apply  only  to  the  entire  independence 
of  different  pleas  in  point  of  law;  but  they  certainly  show  that  the 
facts  alleged  in  one  plea  have  no  more  influence  on  an  issue  made  upon 
a  distinct  plea  in  the  same  cause  than  if  the  same  matter  had  been 
pleaded  in  a  different  cause.  Ever  since  the  statute  of  Anne  it  has 
been  usual  in  England,  where  the  defendant  meant  to  justify,  to  plead 
also  the  general  issue.  This  is  so  apparently  useless  if  the  plea  of 
justification  amounts  to  a  confession  which  can  be  transferred  to  the 
general  issue,  that  a  court  would  not  give  leave  to  plead  both  pleas 
where  the  right  depended  on  the  court,  and  the  defendant  would  not 
ask  it  where  useless  pleas  are  attended  with  heavy  expenses.  The  prin- 
ciple in  pleading  that  a  special  plea  must  confess  and  avoid  the  fact 
charged  in  the  declaration  was  introduced  at  a  time  when  the  rigid 
practice  of  courts  required  that  every  cause  should  be  placed  on  a 


452  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

single  point,  and  when  it  was  deemed  error  to  plead  specially  matter 
which  amounted  to  the  general  issue;  it  was  not  allowed  to  deny  the 
fact  and  to  justify  it.  The  defendant  might  select  his  point  of  defence  ; 
but,  when  selected,  he  was  confined  to  it.  That  a  single  point  might  be 
presented  to  the  jury,  he  was  under  the  necessity  of  confessing  every- 
thing but  that  point.  The  attention  of  the  jury  was  not  directed  to 
multifarious  objects,  but  confined  to  one  on  which  alone  the  cause  de- 
pended. This  rigid  rule  was  undoubtedly  productive  in  many  instanc- 
es of  great  injustice.  The  legislature  in  England  thought  proper  to 
change  it,  and  to  admit  of  various  defences  in  the  same  action.  But  the 
forms  of  pleas  remained.  The  permission  to  put  in  more  than  one 
with  leave  of  the  court  did  not  vary  the  established  forms.  The  ad- 
missions which  are  contained  in  one  plea  respect  only  the  issue  made 
up  on  that  plea.  The  purpose  for  which  the  rigor  of  the  ancient  rule 
was  relaxed  by  law  would  be  defeated  if  the  matter  of  one  plea  were 
to  destroy  another.  There  is  no  more  reason  that  a  plea  of  justifica- 
tion should  prove  the  libel  on  issue  of  not  guilty  than  that  it  should 
support  a  new  action  for  a  libel  founded  on  the  plea  itself.  It  contains 
an  averment  that  the  words  were  true,  and,  if  uttered  by  the  defendant, 
not  in  his  defence  by  way  of  plea,  but  as  a  substantive  and  voluntary 
allegation,  would  be  the  foundation  of  a  new  action.  But  such  a  plea 
has  never  been  so  considered.  Whether  the  reason  is  that  the  allega- 
tion is  in  the  form  prescribed  by  law,  which  the  defendant  must  use 
in  order  to  avail  himself  of  a  defence  allowed  by  law,  or  that  the  plea 
is  put  in  by  counsel,  and  the  words  are  used  by  him,  and  are  not  the 
words  of  the  defendant,  the  reason  operates  as  strongly  against  their 
being  used  as  testimony  in  support  of  the  general  issue  as  against  their 
being  used  in  support  of  a  new  action  founded  on  the  plea.  Certain  it 
is,  that  in  England  this  use  has  never  been  made  of  them. 

In  the  United  States,  generally,  the  rigor  of  the  ancient  rule  that 
the  defence  shall  be  confined  to  a  single  point  has  been  relaxed  still 
further  than  in  England.  In  most  of  the  states— and  North  Carolina 
is  understood  to  be  among  them — the  defendant  has  a  legal  right  with- 
out asking  the  court,  to  plead  as  many  several  matters  as  may  be  neces- 
sary or  as  he  may  think  necessary  for  his  defence.  It  would  be  en- 
tirely inconsistent  with  the  spirit  and  object  of  these  acts  to  permit 
forms  of  pleading  devised  at  a  time  when  judicial  proceedings  were 
regulated  on  a  principle  which  they  were  intended  to  change  to  render 
one  of  the  defences  which  they  authorise,  an  absolute  nullity.  In  Eng- 
land this  has  never  been  attempted.  The  courts  there  will  not  exercise 
the  power  they  possess  to  restrain  the  defendant  from  pleading  incon- 
sistent pleas,  because  such  restraints  would  defeat  the  policy  of  the  act 
of  parliament.  The  policy  of  the  acts  passed  on  the  same  subject  in 
the  United  States  is  still  more  apparent.  It  is  true  that  in  one  state 
the  principle  maintained  by  the  plaintiff  in  this  cause  has  been  sus- 
tained.   The  very  respectable  court  of  Massachusetts  has  decided  that 


Ch.  1)  CONCERNING  SUBSTANCE  45;^ 

in  an  action  for  slander  the  admissions  contained  in  a  plea  of  justifica- 
tion do  of  themselves  disprove  the  plea  of  not  guilty.  I  am  far  from 
disregarding  any  opinion  of  that  court.  But  I  believe  it  stands  alone, 
and  that  no  similar  decision  has  been  made  in  any  state  of  the  Union. 
It  constitutes  no  inconsiderable  deduction  from  the  authority  of  the 
decision  in  Massachusetts  that  there  is  reason  for  the  opinion  that  it 
was  disapproved  generally  by  the  bar.  The  legislature  of  that  state  has 
enacted  that  henceforth  the  plea  of  justification  shall  not  in  an  action 
of  slander  be  taken  as  proof  that  the  words  were  spoken  if  not  guilty 
be  also  pleaded.  This  act  of  the  legislature  shows  I  think  that  the 
general  sense  of  the  profession,  even  in  that  state,  was  opposed  to  the 
decision  of  the  court. 

I  think  a  fair  construction  of  the  act  which  authorises  the  defendant 
to  plead  several  pleas,  that  he  may  use  each  plea  in  his  defence,  and 
that  the  admissions  unavoidably  contained  in  one  cannot  be  used 
against  him  in  another.  It  was  therefore  incumbent  on  the  plaintiff 
in  this  case  to  prove  the  libel  charged  in  the  declaration.     *     *     *  ^"^ 


SECTION  16.— DEPARTURE 


POTTS  V.  POINT  PLEASANT  LAND  CO. 

(Supreme  Court  of  New  Jersey,  1S85.     47  N.  J.  La\Y,  476.  2  Atl.  242.) 

Ree;d,  J.  The  declaration  is  for  breach  of  covenant.  It  sets  out  a 
contract  under  seal,  by  the  terms  of  which  the  plaintiffs  were  to  per- 
form for  the  defendants  certain  work  in  filling  and  grading  certain 
lots  and  claying  certain  sidewalks  at  Point  Pleasant.  It  then  declares 
that  the  defendants  did  covenant,  in  consideration  of  the  faithful 
performance  of  the  said  work,  to  pay  18  cents  per  cubic  yard  for 
the  sand  or  clay  removed;  the  payment  to  be  made  by  a  deed  of  real 
estate,  by  an  assignment  of  certain  mortgages,  by  orders  for  guano, 
and  by  the  payment  of  cash. 

It  then  avers  the  due  performance  of  the  work  on  the  part  of  the 
plaintiffs,  and  the  failure  of  the  defendants  to  perform  their  cove- 
nant to  make  payment  according  to  the  terms  of  their  contract. 

To  this  declaration  the  defendants  pleaded,  among  others,  the  plea 
that  the  performance  of  the  work  was  a  condition  precedent  to  the 
plaintiffs'  right  to  payment,  and  that  the  plaintiffs  had  not  performed 
the  said  work. 

5G  Harington  v.  Macmorris,  5  Taunt.  228  (1813) ;  Pope  v.  Welsh's  Adm'r,  18 
Ala.  aSl  (18.51) ;  West  Chicago,  etc.,  Co.  v.  Morrison,  etc.,  Co.,  IGO  111.  288,  295, 
43  N.  E.  393  (1896) ;  Nve  v.  Spencer.  41  Me.  272  (18.56) :  Carter  v.  Piper.  57  N. 
H.  217,  219  (1870) ;  Noonan  v.  Bradley,  9  Wall.  394,  402,  19  L.  Ed.  757  (1869).. 
Accord.     Jackson  v.  Stetson,  15  Mass.  48  (1818).     Contra. 


454  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

To  this  plea  the  plaintiffs  replied  that,  although  they  tendered  them- 
selves ready  and  willing  to  complete  the  said  work,  the  defendants 
notified  them  to  remove  from  the  defendants'  land  all  the  plaintiffs' 
materials,  tools,  and  working  implements,  by  reason  of  which  they 
were  prevented  from  continuing  said  work  according  to  the  terms  of 
the  contract.     To  this  replication  a  demurrer  was  filed. 

The  point  of  the  demurrant  upon  the  argument  was  that  the  ground 
upon  which  the  plaintiffs  based  their  right  of  action,  in  their  replica- 
tion, was  a  clear  departure  from  the  position  taken  by  them  in  their  dec- 
laration. 

The  counsel  for  the  plaintiffs  contended  that  the  replication  fortified 
the  case  made  by  the  declaration,  and  so  was  legitimate.  The  design 
of  a  replication  is  to  put  upon  the  record  some  new  facts  which  show 
that,  notwithstanding  the  existence  of  the  matters  pleaded  by  the 
defendant,  the  declaration  is  yet  true. 

Thus,  if  plaintiff"  declares  upon  a  statute,  and  defendant  pleads  that 
it  is  repealed,  a  replication  that  it  has  been  revived  by  a  subsequent 
act  is  good ;  for  the  reviving  act  gives  renewed  effect  to  the  first  on 
which  the  action  is  founded.     Gould,  PI.  445. 

So,  if  in  trespass  the  defendant  justifies  for  a  distress,  damage 
feasant,  the  plaintiff  may  reply  that  the  defendant  afterwards  con- 
verted to  his  own  use ;  for  this  shows  the  taking  to  be  a  trespass  ab 
initio.     Comyn,  Dig.  "Pleader,"  11. 

These  are  obvious  instances  of  a  fortification  of  the  position  first 
taken  by  the  pleader.  But  in  the:  two  pleadings  of  the  plaintiffs  in  the 
present  case  it  appears  manifest  that  the  grounds  upon  which  tlie  plain- 
tiff rests  his  claim  are  in  each  distinct.  He  assumes  on  each  that  he  has 
a  condition  to  perform  as  a  precedent  to  his  right  to  recover  compensa- 
tion. He  first  says  :  "I  performed  it."  He  next  says  :  "I  did  not  per- 
form it,  but  was  ready  to  do  so,  and  you  hindered  me." 

The  performance  of  such  a  condition,  and  an  excuse  for  not  per- 
iorming  it,  are  matters  so  distinct  that  good  pleading  requires  the  cer- 
tain averment  of  that  one  upon  which  the  part}'  relies.  -They  are  so 
treated  by  Mr.  Chitty,  he  giving  the  rules  that  regulate  the  pleading  of 
a  performance  of  conditions  precedent,  and  also  the  averments  neces- 
sary in  setting  out  an  excuse  of  performance  by  the  plaintiff.  In  re- 
gard to  the  latter  he  remarks :  "In  stating  an  excuse  for  nonperform- 
ance of  a  condition  precedent,  the  plaintiff  must,  in  general,  show  that 
the  defendant  either  prevented  the  performance  or  rendered  it  un- 
necessary to  the  prior  act  by  his  neglect  or  by  his  discharging  the  plain- 
tiff from  performance."    Chit.  PI.  326. 

But  the  point  involved  here  is  not  new.  Thus  Mr.  Gould,  citing  Co. 
Litt.  304a,  and  1  Sid.  10,  says :  "If  in  covenant  broken  the  defendant 
pleads  performance  on  general  terms,  and  the  plaintiff  replies  nonper- 
formance of  a  particular  act,  a  rejoinder  that  the  defendant  was  ready 
to  perform  and  tendered  performance,  and  that  the  plaintiff  prevented 
it,  is  a  departure  from  the  plea;    performance  and  tender  and  refusal 


Ch.  1)  CONCERNING  SUBSTANCE  455 

being  distinct  and  inconsistent  grounds  of  defense.  The  matter  re- 
joined should  have  been  pleaded  in  the  first  instance."  Gould,  Plead. 
455. 

In  the  present  case  the  plaintiffs  rest  their  case  upon  performance  of 
a  preceding  covenant.  In  the  case  mentioned  by  Mr.  Gould  the  de- 
fendant rested  his  defense  upon  the  performance  of  his  covenant. 

In  neither  case  could  the  parties  in  a  subsequent  pleading  shift  their 
ground  of  attack  or  defense  from  performance  to  an  excuse  for  non- 
performance. 

There  should  be  judgment  for  the  defendant,  with  costs.^^ 


YEATMAN  v.  CULLEN  et  al. 

(Supreme  Court  of  Indiana,  1839.     .5  Blackf.  240.) 

Blackford,  J.  This  was  an  action  of  debt  on  a  promissory  note, 
brought  by  an  assignee  against  the  makers. 

The  declaration  contains  two  counts. 

[The  second  count  was  on  a  note  executed  at  Cincinnati,  Ohio.  To 
this  count  there  were  four  pleas,  viz.:  (1)  Nil  debent :  (2)  want  of 
consideration ;  (3)  that  the  note  was  obtained  from  defendants  by 
fraud,  covin  and  misrepresentation ;  (4)  that  the  note  was  obtained 
from  defendants  by  certain  false  representations.  The  replication  to 
the  three  special  pleas  stated  that  the  note  was  made  at  Cincinnati, 
Ohio,  and  was  there  indorsed  to  the  plaintiff  before  it  became  due, 
and  set  out  a  statute  of  Ohio,  which  made  such  a  note  negotiable 
by  indorsement.  To  this  replication  was  filed  a  general  demurrer 
which  the  trial  court  sustained.]  ^^ 

There  is  one  objection  to  the  replication  in  question,  which  is  fatal 
to  it  on  general  demurrer.  That  objection  is  that  it  is  a  departure  from 
the  second  count  which  it  professes  to  support,  and  to  which  the  special 
pleas  are  pleaded.     In  that  count  the  plaintiff  must  be  considered  as 

5  7  iMcAflen  v.  Gibson,  5  Ala.  .341,  344  (184.3) ;  Warren  v.  Powers,  5  Conn. 
373,  380  (1824) ;  Pollard  v.  Taylor,  2  Bibb.  (Ky.)  234  (1810) :  Siblev  v.  Brown. 
4  Pick.  (Mass.)  137  (182G) ;  Burroughs  v.  Clarke,  3  Gill  (Md.)  196  (184.^);  Por- 
terfield  v.  Butler,  47  Miss.  105,  12  Am.  Rep.  329  (1872) ;  Tarleton  v.  Wells,  2  N. 
H.  30G  (1820)  ;  Stiers  v.  Henries.  8  N.  J.  Law,  304  (1826) :  Andrus  v.  Waring, 
20  Jolins.  (N.  T.)  153  (1822);  McSherrv  v.  Askew,  1  Yentes  (Pa.)  79  (1791); 
Heath  v.  Doyle,  18  R.  I.  2.52,  27  Atl.  333  (1893) ;  Ordinary  v.  Bracev,  1  Brev. 
(S.  C.)  191  (1802) ;  Graham  v.  Graham.  4  Munf.  (Va.)  205  (1814) :  McGowan 
V.  Caldwell,  Fed.  Cas.  8806  (1808) ;  Hillier  v.  Plympton,  1  Str.  422  (1721).  Ac- 
cord. 

But  a  variance  between  declaration  and  replication  or  between  plea  and  re- 
joinder in  an  immaterial  matter  is  no  ground  for  objection.  Primer  v.  Philips, 
1  Salk.  222  (1695);  Webley  v.  Palmer,  1  Salk.  222 -(1696);  Thompson  v.  Fel- 
lows, 21  N.  H.  425  (1850) ;  Wakeman  v.  Paulmier,  39  N.  J.  Law,  .340  (1877). 
Accord.  See,  also,  McMeehan  v.  Hoyt,  16  Ark.  303  (1855)  ;  Little  v.  Blant,  16 
Pick.  (Mass.)  359,  365  (1835). 

58  This  abbreviated  statement  is  substituted  for  the  statement  made  by  the 
court.     Only  so  much  of  the  opinion  as  deals  with  departure  is  printed. 
Wuit.C.L.Pl.— 30 


456 


PRINCIPLES   OF   GENERAL  APPLICATION 


(Part  3 


relying  on  the  statute  of  this  state,  because  he  has  brought  his  action 
here,  and  sets  out  no  other  law ;  but  in  the  replication  he  changes  his 
ground,  and  relies  on  the  statute  of  Ohio.  That  is  a  departure  in 
pleading.  He  deserts  in  his  replication  the  ground,  in  point  of  law, 
on  which  the  second  count  rested  the  cause ;  which  is  as  much  a  de- 
parture, as  if  he  had  changed  his  ground  in  point  of  fact.  3  Tho. 
Co.  Litt.  346;  1  Chitt.  PI.  682;  Steph.  on  PI.  413.  The  plaintifif  should 
have  shown  in  the  second  count,  as  well  as  in  the  first,  the  statute  of 
Ohio  under  which  the  note  was  made.  There  is  the  following  case 
on  this  subject :  In  covenant  against  an  apprentice  on  his  indenture  of 
apprenticeship,  the  declaration  was  in  common  form  (as  at  common 
law).  Plea,  infancy.  Replication,  the  custom  of  London  (under  which 
an  infant  may  bind  himself  an  apprentice).  This  replication  was  held 
to  be  a  departure.  5  Bac.  Abr.  449,  450.  The  replication  in  that  case, 
says  Gould,  was  a  departure,  because  it  abandoned  the  legal  founda- 
tion of  the  suit  as  laid  in  the  declaration,  for  another,  distinct  from 
and  independent  of  it.  The  plaintiff  should  have  declared  on  the 
custom.  Gould  on  PI.  454.  It  is  also  stated  in  the  books  that  a  dec- 
laration or  plea,  asserting  a  right  at  common  law,  is  not  fortified  by 
the  subsequent  allegation  of  a  right  created  by  statute;  but  that  such 
subsequent  allegation  is  a  departure.  5  Bac.  Abr.,  1  Chitt.  PL,  and 
Gould's  PL,  supra. 

The  demurrer  to  the  replication  was,  therefore,  correctly  sustained. ^^ 
The  judgment,  however,  must  be  reversed,  on  account  of  the  error 
in  sustaining  the  demurrer  to  the  first  count. 

Pe;r  Curiam.     The  judgment  is  reversed,  with  costs.     Cause  re- 
manded, etc. 


ALLEN  v.  WATSON. 

(Supreme  Court  of  New  York,  1S19.     16  Johns.  205.) 

This  was  an  action  of  debt,  on  a  bond  in  the  penalty  of  500  dol- 
lars, dated  the  17th  of  October,  1817,  payable  on  demand  to  the  plain- 
tiff, and  conditioned  for  the  performance  of  the  award  of  three  per- 
sons therein  named,  or  of  any  two  of  them,  of  all  matters  in  contro- 
versy between  the  parties,  and  of  the  costs  of  all  suits  commenced-,  or  de- 
pending between  them,  and  the  costs  of  the  arbitration,  so  as  the  award 
should  be  made  by  the  arbitrators,  or  any  two  of  them,  in  writing, 
and  under  seal,  ready  to  be  delivered  to  the  parties,  on  or  before  the 
1st  day  of  January  next  ensuing  the  date  of  the  bond.  The  defendant, 
after  oyer  of  the  bond  and  condition,  pleaded  no  award.  The  plain- 
tiff replied,  reciting  an  award  made  on  the  17th  of  December,  1817, 


59  Wells  V.  Tenll.  5  Blaekf.  (Ind.)  .306  (1840);  Harper  v.  Hampton,  1  Har. 
&  J.  (Md.)  453  (180v3) ;  Porterfield  v.  Butler,  47  iriss.  105,  12  Am.  Rep.  329 
(1872),  semble ;  Bradley  v.  Johnson,  45  N.  J.  Law,  487  (1883),  semble;  Fulmers- 
ton  V.  Stuard,  Dyer,  102b  (1554).  Accord.  See,  also,  Mole  v.  Wallis,  1  Lev.  81 
(1G62). 


Ch.  1)  CONCERXING  SUBSTANCE  457 

by  which  it  was  awarded  that  all  suits  between  the  parties  should  cease, 
that  each  should  pay  his  own  costs  in  those  suits,  that  the  defendant 
should  pay  to  the  plaintiff  97  dollars  and  40  cents,  that  mutual  re- 
leases should  be  executed,  etc.;  and  the  breach  assigned  is  the  non- 
payment of  the  money  awarded  by  the  arbitrators.  The  defendant 
rejoined  that  after  the  making  of  the  bond,  and  before  the  award  was 
made,  or  the  time  for  making  it  had  expired,  he  did,  "by  a  certain 
writing,  obligatory,  sealed,  etc.,  revoke  and  disannul  the  said  bond 
or  writing  obligatory  executed  and  delivered  by  him,  the  said  defend- 
ant, to  the  plaintiff,  and  all  and  singular  the  powers  given  and  grant- 
ed by  him  in  and  by  the  said  bond,  or  writing  obligatory,  to  the  said 
arbitrators,  and  this  he  is  ready  to  verify :    wherefore,  he  prays,"  etc. 

To  this  rejoinder  there  was  a  general  demurrer,  and  the  defendant 
joined  in  demurrer. 

SpExcEr,  C.  J."''  The  points  are:  1,  Whether  the  rejoinder  is  a 
departure  from  the  plea,  and  therefore  vicious;  2,  whether,  and  how 
far,  the  defendant  could  revoke  -the  authority  given  to  the  arbitrators 
by  the  bond  ;■  and,  3,  whether  notice  of  the  revocation  should  not  have 
been  averred. 

A  departure  in  pleading  is  where  one  defence  is  abandoned  or  de- 
parted from  which  was  first  made,  and  recourse  is  had  to  another,  and 
when  the  second  plea  contradicts  the  first  plea,  and  does  not  contain 
matter  pursuant  to  it,  going  to  support  and  fortify  it.  The  principal 
reason  which  has  conduced  to  the  disallowance  of  a  departure  in 
pleading  is  to  avoid  endless  prolixity ;  and  it  has  been  well  observed 
that  he  who  has  a  bad  cause  would  never  be  brought  to  issue,  if  a  de- 
parture in  pleading  were  allowed,  and- he  who  has  a  good  cause  would 
never  obtain  the  end  of  his  suit. 

Thus,  in  Barlow  v.  Todd,  3  Johns.  367,  in  debt  on  an  arbitration 
bond,  the  defendant  pleaded  no  award;  the  plaintiff  replied  setting 
forth  an  award;  the  defendant  rejoined  impeaching  the  award,  be- 
cause the  arbitrators  had  not  made  an  award  touching  one  of  the  items 
of  the  plaintiff's  claim,  which  was  submitted  to  the  arbitrators;  and 
on  demurrer  this  court  held  the  rejoinder  to  be  a  departure,  in  first 
pleading  no  award,  and  then  admitting  it;  and  we  said  it  was  an  es- 
tablished principle  that  a  rejoinder  must  maintain  the  plea,  and  can- 
not set  forth  anyi  matter  at  variance  with  it.  We  also  expressed  a 
decided  opinion  that  the. matter  rejoined  would  have  been  inadmissible 
under  any  circumstances. 

The  real  point  in  this  case  is  whether  the  rejoinder  is  at  variance 
with  the  plea,  and  inconsistent  with  the  allegation  that  the  .arbitrators 
made  no  award.  If  it  is,  then  beyond  all  doubt 'the  rejoinder  is  vicious; 
but  if  it  is  not,  then  it  is  not  objectionable  as  a  departure.  The  re- 
joinder admits  that,  in  point  of  fact,  the  persons  chosen  as  arbitra- 
tors made  and  published  an  instrument  purporting  to  be  an  award,  but 

60  A  portion  of  the  opinion  is  omitted. 


458  PRINCIPLES   OP   GENERAL   APPLICATION  (Part  3 

it  asserts  that  the  powers  conferred  on  the  arbitrators  had  been  re- 
voked by  the  defendant  prior  to  the  making  and  publishing  it.  The 
argument  on  the  part  of  the  defendant  is  that  the  instrument  purport- 
ing to  be  an  award  is  not  so  in  reahty,  and  that  the  facts  rejoined  sup- 
port the  plea,  which  alleged  that  the  arbitrators  had  made  no  award, 
by  showing  that  all  their  powers  were  at  an  end  by  the  revocation, 
and  that  therefore  their  decision  was  unauthorized,  and  does  not  op- 
erate as  an  award  under  the  bond  of  submission. 

The  case  of  Fisher  v.  Pimbley,  11  East,  187,  bears  strongly  on  this 
case,  and  justifies  the  rejoinder.  That  was  an  action  of  debt,  on  a 
bond  conditioned  to  perform  an  award;  plea,  no  award;  replication, 
stating  an  award  and  setting  forth  a  breach;  rejoinder,  stating  the 
whole  award,  in  which  were  recited  the  bonds  of  submission,  whereby 
it  appeared  that  the  award  was  not  warranted  by  the  submission ;  de- 
murrer to  the  rejoinder:  and  it  was  decided  unanimously  by  the  court 
that  the  rejoinder  was  not  inconsistent  with,  nor  a  departure  from,  the 
plea. 

Lord  EUenborough  proceeded  to  show  that  the  award  was  clearly 
bad ;  and,  being  so,  he  said  the  only  question  was  whether  the  defend- 
ant could  show  such  award  in  his  rejoinder,  consistently  with  his 
former  allegation  in  his  plea  that  there  was  no  award.  He  held  that 
the  defendant  maintained  his  former  allegation  that  there  was  no 
award;  in  other  words  (he  observes),  that  there  was  no  legal  and 
valid  award  under  the  submission,  which  is  the  same  as  no  award ;  and 
Le  Blanc  and  Bayley,  Justices,  fully  assented  to  this  reasoning,  on  the 
ground  that  the  rejoinder  showed  that  there  was  no  award  conform- 
able to  the  submission,  and  therefore  no  award. 

It  is  true  there  are  several  decisions  which  seem  to  have  a  different 
aspect,  as  1  Lev.  85,  245 ;  1  Wils.  122;  2  Saund.  84  b.  and  c,  and  188. 
And  the  case  of  Praed  v.  The  Dutchess  of  Cumberland,  4  Term  Rep. 
585,  certainly  adopts  the  contrary  doctrine.  There  an  action  of  debt 
was  brought  on  an  annuity  bond;  the  defendant  pleaded  no  such 
memorial  as  the  statute  required ;  replication,  that  there  was  a  me- 
morial, setting  it  out ;  rejoinder,  that  the  consideration  was  untruly 
alleged  by  the  memorial  to  be  paid  to  both  obligors,  and  that  one  of 
them  received  no  part  of  it;  demurrer  thereto.  The  court  held  the 
rejoinder  to  be  a  departure,  on  the  ground  that  that  plea  tendered 
an  issue  of  fact,  and  not  in  law.  Buller,  Justice,  said,  in  the  case  of 
an  award,  if  there  be  an  award  in  fact,  the  party  cannot,  on  the  trial  of 
an  issue  of  no  award,  go  into  objections  to  the  award,  in  point  of 
law.  A  writ  of  error  was  brought,  on  this  judgment,  to  the  Exchequer 
Chamber  (2  Hen.  Black.  280),  and  the  judgment  was  affirmed,  on  the 
ground  that  the  rejoinder  was  bad  in  substance,  the  court  declining 
to  discuss  the  question  of  departure,  and  expressly  saying  that  they 
gave  no  opinion  upon  it. 

I  confess  that,  until  I  examined  the  case  of  Fisher  and  Pimbley,  my 
impressions  were  that  the  rejoinder  was  a  departure;    but  I  cannot 


I 


Ch.  1)  COXCERNING   SUBSTANCE  459* 

resist  the  solid  reasoning  of  the  judges  in  that  case  that  a  void  award 
is  no  award,  and  that  it  is  not  inconsistent  to  say  that  there  is  no  award, 
and  afterwards  point  out,  in  a  subsequent  pleading,  facts  which  conclu- 
sively show  that  what  is  alleged  to  be  an  award  is  not  an  award.  Here 
the  revocation  of  the  powers  of  the  arbitrators  stripped  them  of  all 
pretence  of  authority  to  act  as  such ;  and,  in  the  strictest  truth,  the  in- 
strument to  which  they  put  their  hands  and  seals  was  no  award  under 
the  submission,  for  the  submission  itself  was  at  an  end.  None  of  the 
cases  cited  come  up  to  this.  The  rejoinders  which  have  been  held  to 
be  departures  do  not  controvert  the  power  of  the  arbitrators,  but  go 
to  impeach  the  awards  for  some  extrinsic  causes ;  such  as  not  making 
the  award  of,  and  upon  the  premises  submitted,  or  a  refusal  to  con- 
sider and  award  upon  some  of  the  matters  submitted;  but  here  the 
objection  strikes  at  the  validity  of  the  award  itself,  by  showing  a 
total  absence  of  power  in  the  persons  assuming  to  make  it ;  and  I 
cannot  but  consider  the  Court  of  Exchequer  Chamber  declining  to 
decide  the  question  of  departure 'in  pleading,  as  evidence  of  doubt  and 
hesitation  on  the  point. 

[The  court  then  held  that  the  defendant  could  revoke  the  powers 
conferred  by  the  arbitration  bond,  and  that  the  rejoinder  sufficiently 
alleged  notice  of  such  revocation.] 

Judgment  for  the  defendant  with  leave  to  the  plaintiff  to  amend  on 
payment  of  costs.'' ^ 


SECTION  17.— NEW  ASSIGNMENT 


MARTIN  v.  KESTERTON. 

(Court  of  Common  Pleas,  1776.     2  W.  Bl.  10S9.) 

Trespass  for  breaking  and  entering  and  doing  damages  in  several 
closes  of  the  plaintiff  at  Lambeth.  The  defendant  demurs,  for  that 
the  number  of  closes  is  not  stated  or  set  forth  in  the  declaration,  nei- 
ther are  they  named  or  sufficiently  described  therein,  whereby  the  de- 
fendant is  unable  to  collect  the  supposed  cause  of  action,  or  make  any 
answer  thereto.    Joinder  in  demurrer. 

Blackstonk,  J.  I  have  looked  into  this  matter  with  some  atten- 
tion :  and  I  conceive  that  anciently,  upon  a  writ  of  quare  clausum 
fregit,  the  plaintiff  might  (and  may  still)  declare  either  generally,  for 

61  Fowler  v.  Macomb,  2  Root  (Conn.)  .388  (179G) ;  Tillis  v.  Liverpool,  etc., 
Co.,  46  Fla.  268,  35  South.  171,  110  Am.  St.  liep.  89  (190.3) ;  People  v.  Opera 
House  Co.,  249  111.  106,  94  N.  E.  159  (1911) ;  Citv  of  Chicago  v.  People.  210 
111.  84,  71  N.  E.  816  (1904);  Breck  v.  Blanoliard,  22  N.  II.  .303  (1851);  Haley 
V.  McPherson,  3  Humph.  (Tenn.)  104  (1842);  Virginia,  etc.,  Co.  v.  Saunders, 
86  Va.  969,  11  S.  E.  7'.t4  (lSi»0) ;  Levy  v.  I'eabody,  10  W.  Va.  560,  27  Am.  Hep. 
598  (1877) ;    Fisher  v.  Pimbley,  11  East,  187  (1809).     Accord. 


460  PRINCIPLES   OP   GENERAL   APPLICATION  (Part  3 

breaking  his  close  at  A.,  or  might  name  the  close  in  his  count,  as  for 
breaking  and  entering  his  close  called  Blackacre  in  A.,  or  might  other- 
wise certainly  describe  the  same.  If  he  declared  generally,  and  the 
defendant  pleaded  the  general  issue,  the  plaintiff  might  give  evidence  of 
a  trespass  in  any  part  of  the  township  of  A.  Heath,  Maxims,  12.  So 
that  for  the  advantage  of  the  defendant,  and  to  enforce  the  plain- 
tiff to  ascertain  the  place  exactly,  a  method  was  devised  of  permitting 
the  defendant  to  plead  what  is  called  the  common  bar,  that  is,  to  name 
any  place,  as  Broomfield  (true  or  false  was  immaterial)  in  A.,  as  the 
place  where  the  supposed  trespass  happened,  and  then  to  allege  that 
such  place  so  named  was  the  defendant's  own  freehold.  And,  as  the 
plaintifif  could  prove  no  trespass  in  Broomfield,  this  drove  him  to  a 
new  assignment  of  the  locus  in  quo,  by  naming  the  place  in  certain, 
as  a  close  called  Blackacre,  to  which  the  defendant  was  now  to  plead 
afresh.*^-  And  this  came  to  be  so  much  the  course  that  (though  it  had 
been  held  in  9  Edw.  4,  23,  24,  that  if  the  plaintiff  named  the  place  in 
certain  by  his  count,  he  could  not  afterwards  vary  from  it),  yet,  in  15 
Edw.  4,  23,  it  was  held  by  Brian  and  Littleton  that  it  was  mere  nuga- 
tion  and  surplusage  for  the  plaintiff  to  name  the  close  in  his  declara- 
tion, and  that  it  should  not  put  the  defendant  out  of  his  usual  course 
of  pleading  the  common  bar  and  giving  the  close  another  name ;  and 
an  amendment  (cjuite  contrary  to  what  is  now  wished)  was  directed  by 
striking  the  name  out  of  the  plaintiff's  declaration.  And  Brook, 
abridging  this  case  (Travers,  111),  draws  from  it  this  general  rule, 
"that  a  thing  put  in  a  declaration,  which  is  not  usual,  shall  not  put  the 
other  party  out  of  his  common  course  of  pleading."  And  the  same  is 
laid  down  as  law  in  Hob.  16,  10  Jac.  1,  ''that  if  the  plaintiff  in  trespass 
assigns  a  place,  the  defendant  may  plead  at  another  place,  without 
traversing  the  place  assigned  by  the  plaintiff,  and  then  the  plaintiff 
may  take  a  new  assignment."  Catesby,  however,  21  Edw.  4,  18,  held 
the  contrary,  that  if  the  plaintiff  names  the  place,  the  defendant  shall 
answer  to  the  place  as  laid,  and  shall  not  give  it  another  name.  At 
length  Fairfax,  22  Edw.  4,  17,  lays  down  the  rule  very  clearly,  and 
reconciles  the  whole  by  taking  this  difference:  "If  the  plaintiff  gives 
a  name  by  his  writ,  the  defendant  cannot  vary  from  this  name.  But 
if  the  writ  be  only  in  general,  quare  clau'sum  fregit,  and  the  plaintiff 
gives  a  name  in  his  count,  this  shall  not  bind  the  defendant,  but  he 
may  give  the  plaintiff  another  name,  and  change  the  name  he  has  giv- 
en. But  if  the  name  be  in  the  writ  and  also  in  the  count,  then  it  can- 
not be  varied  from."  That  is,  in  short,  that  upon  a  general  writ,  the 
plaintiff  ought  not  to  declare  specially;    and  if  he  does,  the  special 

6  2  Similarly,  where  defendant  has  committed  more  than  one  violation  of 
plaintiff's  right,  for  one  of  which  he  has  a  .iustilic-ation  or  excuse,  if  plain- 
tiff's declaration  does  not  make  it  clear  to  which  wrong  it  refers,  defendant 
may  plead  his  justification  or  excuse,  and  thus  drive  plaintiff  to  a  new  as- 
signment. Carpenter  v.  Crane,  5  Blackf.  (Ind.)  119  (1839) ;  Scott  v.  Dixon, 
2  Wils.  3  (1753).  See.  also,  Williams  v.  Spears,  11  Ala.  138,  142  (1847) ;  Smith 
V.  Powers,  13  N.  H.  216  (1S42) ;    Spencer  v.  Bemis,  40  Vt.  29  (1873). 


I 


Ch.  1)  CONCERNING  SUBSTANCE  401 

name  is  surplusage.  And  so  it  was  understood,  5  Hen.  7,  28,  Bro. 
Trespass,  277,  "hoc  patet  that  in  a  general  writ  of  trespass  the  defend- 
ant may  give  name,  but  the  plaintiff  in  his  count  cannot  give  it  a  name." 
And  as  it  became  the  practice  to  sue  out  only  general  clausum  fre- 
gits,  and  the  law  was  held  that  upon  such  general  writs  the  plaintiff 
either  could  not  at  all,  or  could  not  to  any  conclusive  effect,  count 
any  close  in  certain,  the  mode  of  declaring  generally,  pleading  the  com- 
mon bar,  and  making  a  new  assignment,  seems  to  have  been  universal- 
ly adopted.  See  Aston,  505,  in  11  Eliz.,  and  all  Coke's  Entries  of  cas- 
es in  the  Common  Pleas ;  for  in  the  proceedings  by  bill  in  the  King's 
Bench  the  declarations  are  all  of  a  place  certain.  But  as  this  practice 
was  circuitous  and  full  of  delay,  a  rule  was  made  in  the  Common 
Pleas  about  the  time  of  Heath,  Max.  13  (and  he  was  Chief  Justice  in 
Charles  the  First's  time),  for  the  benefit  of  plaintiffs,  to  permnt  them 
to  declare  in  certain,  which  was  afterwards  ingrafted  into  the  code  of 
rules,  A.  D.  1654,  and  is  clearly  only  permissive,  and  not  compulsory 
upon  the  plaintiff :  "The  declaration  upon  an  original  or  bill  quare 
clausum  fregit  may  mention  the  place  certainly,  and  so  prevent  the 
use  and  necessity  of  the  common  bar  and  new  assignment."  Section 
17.  But  when  the  plaintiff  has  so  declared,  section  19  is  peremptory  on 
the  defendant,  "that  the  common  bar  and  new  assignment  be  forborn, 
where  the  declaration  contains  the  certainty  equivalent  to  a  new  as- 
signment." And  that  it  was  so  understood  at  the  time,  and  immediate- 
ly after,  appears  from  the  many  precedents  to  be  met  with  in  the  books 
of  general  declarations,  with  .the  common  bar,  and  new  assignment, 
subsequent  to  1654.  As  in  Lilly,  444,  33  Car.  2;  Lutw.  1301,  1372, 
1385,  1399,  1467,  from  36  Car.  2,  to  9  W.  3.  For  the  practicers  could 
not  be  induced  all  at  once  to  depart  from  their  ancient  forms ;  though 
as  the  new  regulations  were  evidently  calculated  for  the  benefit  of 
the  plaintiff,  by  preventing  circuity  and  delay,  the  old  practice  grad- 
ually wore  out;  and  the  last  of  these  general  declarations  which  I 
have  seen  (till  the  present)  is  in  the  Common  Pleas,  5  Geo.  1.  Still, 
however,  the  law  permits  the  plaintiff  to  use  this  circuity  and  to  de- 
lay himself,  if  he  be  so  advised;  and  therefore  the  reporter  of  Elwis 
and  Lamb,  H.  2  Ann.  in  the  King's  Bench,  6  Mod.  119,  is  a  little  mis- 
taken, or  has  expressed  himself  ambiguously  in  one  point,  by  suppos- 
ing the  rule  to  be  compulsory  on  the  plaintiff,  instead  of  optional.  H 
we  read  "may"  instead  of  "shall,"  what  he  represents  the  court  to  have 
said  will  be  perfectly  right.  "Now  there  is  a  fixed  course  established 
in  the  Common  Pleas,  that  in  local  actions  the  plaintiff  shall  ascertain 
the  place  in  his  declaration,  to  prevent  such^  general  pleas,  and  the 
prolixity  of  a  new  assignment;  and  the  defendant  is  confined  to  the 
place  ascertained  in  the  declaration."  Salkeld,  in  reporting  the  same 
case  453,  states  the  manner  of  declaring  to  be  still  optional  in  the  plain- 
tiff. "In  trespass  quare  clausum  fregit  in  D.  (i.  e.,  without  naming  the 
close),  if  the  defendant  plead  liberum  tenementum,  and  issue  be  joined 
thereon,  it  is  sufficient  for  the  defendant  to  show  any  close  that  is  his 


462  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

freehold.*'^  But  if  the  plaintiff  gives  tlie  close  a  name,  he  must  prove 
a  freehold  in  the  close  named.*'*  So  adjudged  in  the  Common  Pleas 
and  the  judgment  affirmed  in  the  King's  Bench  on  a  writ  of  error." 
As,  therefore,  the  plaintiff  has  a  right  to  declare  generally,  if  he  pleas- 
es, I  think  the  demurrer  is  bad.*'^ 

Glyn,  for  the  defendant,  perceiving  the  opinion  of  the  majority  of 
the  Court  to  be  against  his  client,  moved  for  leave  to  withdraw  his 
demurrer,  without  payment  of  costs;  and  to  plead  not  guilty  and  a 
tender  of  amends.     *     *     * 

Rule  absolute,  on  payment  of  costs. "^^  ^- 

I 


DITCHAM  V.  BOND. 
(Court  of  King's  Bench,  181.3.     3  Campb.  524.) 

Trespass  for  breaking  and  entering  the  plaintiff's  dwelling  house, 
and  making  a  great  noise  and  disturbance  therein,  etc.,  and  for  as- 
saulting and  beating  him  and  his  servant. 

The  defendant  pleaded  to  breaking  and  entering  the  house  a  license, 
with  other  pleas  to  the  rest  of  the  declaration. 

Replication  to  all  the  pleas,  de  injuria,  etc. 

It  appeared  that  the  plaintiff  keeps  several  billiard  tables  in  his 
house,  at  which  all  persons  may.  play,  paying  certain  regulated  prices 
by  the  game  or  hour.  There  is  no  board  or  sign  on  the  outside  of  his 
house,  stating  that  billiard  tables  are  kept  there ;  but  the  outer  door 
always  remains  open,  and  gentlemen  walk  upstairs  to  the  billiard 
rooms,  if  any  happen  to  be  disengaged,  or  if  not,  they  wait  in  a  parlour 
below.  On  the  18th  of  May  the  defendant  entered  the  house,  and 
insisted  on  walking  up  stairs  to  the  billiard  rooms,  although  they  were 
all  engaged,  struck  the  plaintiff,  who  wished  to  prevent  him,  and  made 
a  great  disturbance  in  the  house  for  a  considerable  while  after. 

It  was  insisted  for  the  defendant  that  he  was  entitled  to  a  verdict 
on  the  plea  of  licence,  as  the  plaintiff  must  be  supposed  to  have  con- 
sented to  all  persons  entering  the  house  for  the  purpose  of  playing  at 
billiards.  The  defendant  might  have  been  guilty  of  some  excess ;  but 
that  could  not  be  taken  advantage  of  for  want  of  a  new  assignment. 

On  the  other  side  it  was  contended  that  the  keeping  of  billiard 
tables  under  these  circumstances  was  no  evidence  of  licence,  and  that 

63  Marks  v.  Madsen,  2G1  111.  -51,  10.3  N.  E.  G25  (1918) ;  Tribble  v.  Frame,  7 
T.  B.  Mon.  (Kv.)  .529  (1824)  ;  Ellet  v.  PuUen,  12  N.  J.  Law,  357  (1831) ;  Austin 
V.  Morse,  8  Wend.  (N.  Y.)  476  (1832),  semble;  Goodrigbt  v.  Rich,  7  D.  &  E. 
327,  335  (1797),  semble.  Accord.  Anon.  Dyer,  23b.  Contra.  See  note  9  111. 
Law  Rev.  46. 

6  4  Cocker  v.  Crompton,  1  B.  &  C.  489  (1823) ;  Cooke  v.  Jackson,  9  D.  &  R. 
495  (1827) ;   Lempriere  v.  Humphrey,  3  A.  &  E.  181  (1835).     Accord. 

6  5  Palmer  v.  Tuttle,  .39  N.  H.  486  (1859).     Accord. 

6  6  The  opinions  of  Gould  and  Nares,  J  J.,  are  ondtted. 


Ch.  1)  '  CONCERNING  SUBSTANCE  4G3 

at  any  rate  the  defendant  by  his  subsequent  conduct  had  made  him- 
self a"  trespasser  ab  initio. 

L,ord  EllEnborough.  I  think  the  plaintiff  was  bound  to  new-assign. 
The  keeping  of  a  billiard  table  amounts  to  a  licence  given  by  the  party. 
The  distinction  is  taken  in  the  Six  Carpenters'  Case,  8  Rep.  146,  be- 
tween a  licence  given  by  the  party  and  a  licence  given  by  the  law.  If 
the  defendant  exceeds  the  latter,  as  by  committing  a  trespass  in  an  inn, 
he  is  a  trespasser  ab  initio ;  but  an  excess  of  the  former  must  be  taken 
advantage  of  by  new  assignment."^ 

The  plaintiff  had  a  verdict,  with  £5  damages  for  the  assault  upon 
himself  and  his  servant. 


HALL  V.  MIDDLETON. 

(Court  of  King's  Bench,  1835.     4  Aclol.  &  E.  107.) 

Assumpsit  for  money  lent,  and  on  an  account  stated.  Pleas,  to  the 
first  count,  payment;  to  the  second,  non  assumpsit,  on  which  issue 
was  joined.  Replication  to  the  first  plea,  that  plaintiff  sued,  not  for 
the  nonperformance  of  the  premises  in  the  first  plea  mentioned,  and 
in  full  satisfaction  and  discharge  whereof  defendant  paid  plaintiff  the 
sum  in  that  plea  mentioned,  but  for  the  nonperformance  of  another 
and  different  promise  made  by  defendant  to  plaintiff  in  manner  and 
form  as  in  the  first  count  mentioned.  Verification.  Rejoinder,  non 
assumpsit :  and  issue  thereon.  The  cause  was  tried  at  Chesterfield, 
on  the  1st  of  December,  1834,  before  the  undersheriff  of  Derbyshire, 
on  whose  notes,  produced  as  after  mentioned,  the  following  facts  ap- 
peared. The  plaintiff  claimed  £15  for  money  lent  in  August,  1833. 
A  witness  proved  for  the  plaintiff  that,  in  October,  1833,  the  defendant 

67  Spades  v.  Murray,  2  Ind.  App.  401,  28  N.  E.  709  (1891) :  Bowen  v.  Parrv, 
1  C.  &  P.  394  (1R24) ;  Fenn  v.  Ward,  2  Cr.  M.  &  R.  338  (1835) ;  Oakes  v.  Wood, 
3  M.  &  W.  150  (1837).  Accord.  Ayres  v.  Keile.v,  11  111.  17  (1819)  ;  Ilannen  v. 
Edes,  15  Mass.  .347  (1819);  Curtis  v.  Carson,  2  N.  H.  539  (182.3);  Bennett  v. 
Appleton,  25  Wend.  (N.  Y.)  371  (1841);  Elliot  v.  Kilburu,  2  Vt.  470  (1855). 
Contra. 

Where  the  excess  makes  defendant  a  trespasser  ab  initio,  the  replication 
should  set  forth  the  facts,  but  it  sliould  not  be,  strictl.v,  a  new  assie;innent. 
T.incoln  v.  McLaughlin,  74  111.  11,  13  (1874),  senilile ;  O.vstead  v.  Shed,  12  IMass. 
500,  508  (1815),  senible;  Great  Falls  Co.  v.  Worster,  15  N.  H.  412,  440  (1844), 
senible ;    Ilubbell  v.  Wheeler,  2  Aikens  (Vt.)  359,  302  (1827),  semble. 

Defendant  in  his  plea  need  not  answer  matters  of  aggravation  ;  if  plain- 
tiff intends  to  rely  on  them,  he  must  new-assign.  McConnel  v.  Kibbe.  3.">  111. 
175,  85  Am.  Dee.  265  (18(34) ;  Rasor  v.  Quails,  4  Blackf.  (Ind.)  286,  30  Am.  Dec. 
658  (1836) ;  Tingling  v.  Hoppe,  9  Gill.  (Md.)  310  (1850)  ;  Grout  v.  Knapp,  40 
Vt.  103  (1868) ;  Taylor  v.  Cole,  3  D.  &  E.  292  (1789) ;  IMonprivatt  v.  Smith,  2 
Campb.  175  (1809) ;  Wel)ber  v.  Sparkes,  10  Mees.  &  W.  485  (1842).  But  if  it 
is  apparent  tliat  the  matter  is  not  intended  as  aggravation,  but  as  part  of  the 
.gist  of  the  action,  no  new  assignment  is  required.  Thayer  v.  Sherlock,  4 
Mich.  173  (1856);  Vreeland  v.  Berry  et  al.,  21  N.  J.  Law."  183  (1S47) ;  Perrv 
V.  Carr,  42  Vt.  50  (1869)  ;  Carpenter  v.  Barber,  44  Vt.  441  (1872) ;  Bush  v. 
Parker,  1  Bing.  N.  C.  72  (18.34);    Phillips  v.  Ilowuate.  5  B.  &  Aid.  220  (1821). 


4G4 


PRINCIPLES   OF   GENERAL   APPLICATION 


(Part  3 


acknowledged  owing  the  plaintiff  £15  for  money  borrowed,  and  that, 
in  February,  1834,  on  being  asked  why  he  had  not  paid  the  plaintiff 
the  £15  he  owed  him,  the  defendant  answered  that  he  had  paid  it  when 
his  uncle's  affairs  were  settled.  Another  witness  proved  that,  on  the 
occasion  alluded  to,  no  such  settlement  took  place.  For  the  defendant, 
a  witness  stated  that,  in  the  latter  end  of  October,  1833,  the  plaintiff 
called  on  the  defendant,  and  asked  him  for  £15,  which  the  defendant 
paid,  with  4s.  6d.  for  the  loan,  and  the  plaintiff  said,  "it  would  make 
it  right  of  all  accounts."  The  plaintiff  had  a  verdict  for  £15  and  in- 
terest. The  defendant's  solicitor,  after  the  verdict  had  been  given, 
requested  the  undersheriff  to  put  to  the  jury  whether  there  were  two 
sums  of  £15  lent,  or  whether  there  was  any  other  sum  lent  than  that 
mentioned  in  the  first  count  of  the  declaration;  but  the  undersheriff 
refused.  Maule,  in  Hilary  term,  1835,  obtained  a  rule,  on  production 
of  the  undersheriff's  notes,  and  on  affidavits,  to  show  cause  why  there 
should  not  be  a  new  trial,  or  a  verdict  entered  for  the  defendant,  on 
the  ground  that  the  undersheriff  had  improperly  refused  to  put  the 
above  question,  which  was  stated,  on  affidavit,  to  have  been  suggested 
immediately  on  the  close  of  the  summing  up,  and  likewise  (which  also 
appeared  by  affidavit  only)  that  the  undersheriff  had  merely  put  it  to 
the  jury  whether  the  £15  said  to  have  been  lent  to  the  defendant  by 
the  plaintiff  in  August,  1833,  had  been  so  lent. 

W.  H.  Watson  now  showed  cause.  The  court  will  give  credit  to  the 
undersheriff's  notes,  as  to  the  facts  stated  in  them,  rather  than  to  the 
affidavits.  It  is  true  that,  where  there  is  a  new  assignment,  the  plaintiff 
must  show  that  there  was  a  second  trespass,  or,  in  a  case  like  the  pres- 
ent, a  second  debt.  Here  the  plaintiff  proved  a  debt.  It  did  not  ap- 
pear in  evidence  that  there  was  any  other.  But  the  defendant,  instead 
of  taking  this  objection  when  the  plaintiff  had  closed  his  case,  called 
witnesses  for  the  purpose  of  establishing  a  payment  applicable  to  the 
debt  which  had  been  proved.  Failing  to  do  so,  he  changes  his  course, 
and  contends  that  the  question  which  ought  to  have  gone  to  the  jury 
was,  whether  or  not  two  debts  had  existed.  But,  after  having  virtually 
admitted  that  there  were  two  debts,  and  rested  his  defence  upon  a  pay- 
ment of  the  debt  newly  assigned,  he  cannot  come  to  the  court,  alleging 
that  he  took  a  wrong  point  at  the  trial,  and  claiming  their  interference 
to  set  him  right.  In  Pratt  v.  Groome,  15  East,  235,  it  appeared,  affirma- 
tively, by  the  plaintiff's  case,  that  only  one  place  was  in  question ;  and, 
in  the  same  manner,  in  Oakley  v.  Davis,  16  East,  82,  that  there  was 
only  one  arrest  really  complained  of.  [PattiJson,  J.  The  defendant 
here  was  not  at  liberty  to  prove  payment  of  the  debt  newly  assigned, 
not  having  rejoined  payment  of  it.  The  evidence  of  payment  must 
have  been. given  to  identify  the  debt  spoken  of  by  the  plaintiff's  wit- 
nesses, with  that  of  which  payment  had  been  pleaded.] 

Maule,  contra.  The  question  raised  on  the  record  was  whether  there 
were  two  debts  or  only  one;    and  that  ought  to  have  gone  to  the  jury. 


Ch.  1)  COXCERXIXG  SUBSTANCE  465 

The  evidence  of  payment  was  given  to  identify  the  debt  paid  with  that 
first  pleaded  to.     (He  was  then  stopped  by  the  court.) 

Lord  Dexman,  C.  J.  We  agree  in  the  view  taken  on  the  defend- 
ant's part.  The  only  issue  was,  whether  or  not  there  was  a  second 
debt.    Any  question  as  to  payment  of  that  debt  was  immaterial. 

Pattesox,  J.  The  rule  must  be  absolute  for  a  new  trial,  as  there 
was  some  evidence  of  a  second  debt.  If  there  had  been  no  such  evi- 
dence at  all,  the  defendant  would  have  been  entitled  to  have  a  nonsuit 
entered. 

Williams  and  Coleridge,  JJ.,  concurred. 

Rule  absolute  for  a  new  trial. ''^ 


SECTION  18.— ANTICIPATORY  ALLEGATIONS 


WALKER,  Attorney  General,  v.  ^IICHIGAN  STATE  BANK. 
(Supreme  Court  of  Michigan.    1S46.    2  Doug.  359.) 

To  an  information  in  the  nature  of  a  quo  warranto,  charging  de- 
fendants with  using  without  warrant  the  franchise  of  being  a  body 
politic  and  corporate,  defendants  pleaded  an  act  of  the  legislative 
council  of  the  state  constituting  defendants  a  body  politic  and  cor- 
porate, and  set  out  facts  showing  several  transactions  with  the  state, 
which  facts  the  Attorney  General  moved  to  strike  out  as  surplusage.''^ 

Whipple,  J.  *  *  *  A  motion  was  made  by  the  Attorney  Gen- 
eral to  strike  out  as  surplusage  all  that  part  of  the  plea  relating  to 
the  condition  of  the  bank  in  the  years  1838  and  1839,  the  negotia- 
tion and  settlement  with  the  state,  and  the  several  acts  of  the  legisla- 

68  Boynton  v.  Willard,  10  Piclv.  (Mass.)  166  (1830) :  Davidson  v.  Sclienclv, 
31  N.  J.  Law,  174  (1865)  ;  Freeston  v.  Crouch,  Cro.  Eliz.  40l'  (1596) ;  Oakley 
V.  Davis,  16  East,  82  (1812) ;  Wilmshurst  v.  Bowk:er,  5  Bing.  N.  C.  541  (1839). 
Accord. 

"These  facts  are  all  averred  in  the  plea,  and  are  not  traversed ;  and  the 
effect  of  the  new  assignment  is  not  strictly  to  admit  the  truth  of  these  facts, 
but  to  withdraw  them  entirely  from  consideration  as  the  subject  of  the  action, 
and  to  preclude  the  plaintiff  from  complaining  of  them ;  and  the  true  grounds 
of  complaint  are  to  be  sought  in  the  explanation  of  the  declaration  contained 
in  the  now  assignment."  Parke,  B.,  in  Dand  v.  Kingscote,  6  IMees.  &  W.  174, 
at  197  (1840).  See.  also,  1  Wm's.  Saund.  299a,  note  f ;  Dana  v.  Bryant,  1  Gil- 
man  (6  111.)  104  (1S44) ;   Bartlett  v.  Prescott.  41  N.  H.  493  (1860). 

To  a  plea  of  payment  a  new  assignment  is  not  necessary.  Freeman  v. 
Crafts,  4  Jlees.  &  W.  4  (1838) ;  .Tame.s  v.  Lingham,  5  Bing.  N.  C.  553  (1839) ; 
Moses  V.  Levy,  4  A.  &  E.  (N.  S.)  213  (1843). 

c'J  This  short  statement  is  substituted  for  the  statement  contained  in  the 
original  opinion.  The  portion  of  the  opinion  dealing  with  the  presumption  of 
continued  corporate  existence  down  to  the  time  of  the  usurpation  alleged  in 
the  information  is  omitted. 


466  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

ture  in  relation  to  such  settlement,  and  the  history  of  the  several  suits 
instituted  by  and  against  the  bank,  etc. 

If  that  portion  of  the  plea  to  which  exception  is  taken  is  mere  sur- 
plusage, the  motion  is  appropriate.  Whether  the  motion  is  well  found- 
ed or  not  must  depend  upon  the  application  to  the  matter  objected  to 
as  surplusage  of  a  few  elementary  rules  of  pleading.  "It  is  not  neces- 
sary in  pleading  to  state  matter  which  would  come  more  properly 
from  the  other  side."  Steph.  PL  350.  The  true  meaning  of  the  rule 
is  "that  it  is  not  necessary  to  anticipate  the  answer  of  the  adversary, 
which,  according  to  Lord  Hale,  is  like  leaping  before  one  comes  to  the 
stile."  It  is  sufficient,  says  the  same  author,  that  each  pleading  should 
in  itself  contain  a  good  prima  facie  case,  without  reference  to  possible 
objections  not  yet  urged.  Gould  thus  states  the  rule:  "In  general,  it 
is  not  necessary  for  either  party  to  allege  more  than  will  constitute, 
prima  facie,  a  sufficient  cause  of  action  or  defence.  It  is  therefore, 
in  general,  unnecessary  for  a  party  to  deny,  or  avoid  by  anticipation, 
all  or  any  of  the  possible  facts  which  might  furnish  sufficient  answers 
in  law  to  his  own  allegations."  Gould's  PI.  167.  The  same  rule  is 
affirmed  by  Chitty,  who  says  that,  "in  general,  whatever  circum- 
stances are  necessary  to  constitute  the  cause  of  complaint,  or  ground 
of  defence,  must  be  stated  in  the  pleadings,  and  all  beyond  is  surplus- 
age." 1  Chitty's  PI.  246.  This  rule,  like  all  others  in  the  law  of  plead- 
ing, is  founded  in  sound  logic ;  and,  in  practice,  it  is  both  reason- 
able and  convenient,  as  a  contrary,  practice  would  lead  to  confusion  and 
prolixity.  Illustrations  of  the  rule  are  to  be  found  in  the  examples 
given  in  the  elementary  works  from  which  I  have  quoted,  and  nu- 
merous adjudicated  cases  might  be  cited  to  show  its  extent  and  ap- 
plication. Let  us  apply  the  rule  to  the  case  before  us.  The  informa- 
tion alleges  that  the  defendants  have  used,  without  any  warrant,  cer- 
tain liberties,  privileges  and  franchises.  The  defendants  answer  by 
setting  out  a  charter,  by  which  they  are  warranted  in  using  the  liber- 
ties, privileges  and  franchises  they  are  charged  with  having  visurped. 
Does  this  constitute  a  good  prima  facie  defence  to  the  information, 
without  reference  to  the  other  matters  set  out  in  the  plea  ?  This  ques- 
tion may  be  tested  by  supposing  a  general  demurrer  to  be  interposed 
to  the  plea ;  the  demurrer  would  admit  the  truth  of  the  matter  pleaded, 
and  the  judgment  of  the  court  cannot  be  doubted;  the  defence  would 
be  regarded  as  perfect  and  conclusive.  The  same  result  would  follow 
if  issue  were  taken  upon  the  plea,  and  the  same  facts  proved  on  the 
trial  of  the  issue,  which  would  be  admitted  if  a  demurrer  were  inter- 
posed. The  only  possible  purpose  of  the  other  allegations  in  the  plea 
must  be  either;  1st,  to  show  that  the  state  is  estopped  from  insisting 
upon  any  cause  of  forfeiture,  which  might  have  accrued  anterior  to 
the  acts  of  the  legislature  referred  to  in  the  plea,  and  the  contracts 
therein  stated  to  have  been  made  between  the  state  and  the  bank ;  or, 
2d,  to  show  a  continued  corporate  existence  down  to  the  time  of  the 
usurpation  alleged  in  the  information. 


I 


Ch.  1)  CONCERNING  SUBSTANCE  467 

That  the  plea  cannot  be  sustained  on  the  first  ground  seems  to 
me  very  clear  from  what  has  already  been  stated.  It  is  anticipating 
matter  which  should  properly  come  from  the  other  side,  and  thus  in- 
volves a  violation  of  a  fundamental  rule  of  pleading.  The  charter 
would  prove  that  the  corporation  was  legally  created,  and  the  law 
will  intend  that  it  performed  all  its  duties.  Besides,  it  is  making  an 
issue  when  no  issue  is  tendered.  The  plea  not  only  avers  matter  which 
if  true  would  constitute  a  full  answer  to  the  information,  but  pur- 
ports also  to  answer  matters  not  averred  in  the  information ;  in  other 
words,  it  presumes  that  the  Attorney  General  will  insist  upon  a  for- 
feiture of  the  charter  by  the  corporators,  for  causes  arising  anterior 
to  a  certain  period;  and  the  object  of  setting  out  the  acts  of  the  legis- 
lature, and  the  contracts  before  referred  to,  is  to  answer  such  a  sup- 
posed state  of  facts.  But  I  have  said  that  this  court  will  intend  that 
the  defendants  have  performed  all  their  duties  until  the  contrary  be 
shown.  People  v.  President,  etc.,  of  Manhattan  Co.,  9  Wend.  (N.  Y.) 
379.  We  cannot  presume  that  the  defendants  have  done  any  acts 
which  will  involve  a  forfeiture  of  chartered  rights,  or  draw  down  upon 
them  the  infliction  of  a  heavy  penalty.  It  may  be  that  the  Attorney 
General  will  not  reply  facts  which,  if  found  true,  would  constitute  a 
ground  of  forfeiture ;  or  if  a  forfeiture  is  urged,  it  may  be  for  causes 
occurring  subsequent  to  the  acts  and  contracts  spread  out  in  the  plea; 
in  such  a  case  the  matter  objected  to  would  be  inapplicable,  as  it  pur- 
ports to  be  an  answer  to  causes  of  forfeiture  arising  anterior  to  these 
acts  and  contracts.  This  reasoning  illustrates  the  propriety  of  the 
rule  I  am  seeking  to  enforce;  it  shows  that  the  portion  of  the  plea 
which  we  are  called  upon  to  reject  as  surplusage  might  be  good  or  bad, 
according  to  circumstances.  Whether  it  be  good  or  bad  we  will  de- 
termine when  the  Attorney  General  alleges  upon  the  record  causes  of 
forfeiture  to  which  the  plea  would  be  a  legal  answer.     *     *     * 

Upon  the  whole,  we  are  of  opinion  that  the  motion  of  the  Attorney 
General  must  be  granted.'^'' 


JOLIET  STEEL  CO.  v.  SHIELDS. 

(Supreme  Court  of  Illinois,  1S90.     134  111.  209,  2.5  N.  E.  5G9.) 

Action  on  the  case.  The  declaration  contained  two  counts,  in  each 
of  which  plaintiff  alleged  that  at  the  time  of  the  accident  complained 
of  he  was  engaged  as  servant  of  the  defendant  in  repairing  defendant's 
railroad  track,  and  that  defendant,  by  its  servants,  negligently  placed 
a  certain  mold  in  an  insecure  and  dangerous"  position  near  said  track, 
and  that  said  mold  fell  and  injured  plaintiff.  Defendant  pleaded  not 
guilty.     Verdict  was  rendered  for  plaintiff.     Defendant's  motion  in 

7  0  Sir  Ralph  Bovy's  Case,  1  A'entr.  217  (167C) ;  31  Cyc.  109;  21  Eucyc.  PI. 
&  Pr,  293,  and  cases  cited.     Accord. 


468  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

arrest  of  judgment  was  denied,  and  judgment  was  entered  iipoi?  the 
verdict.  Defendant  appealed  to  the  Appellate  Court,  which  affirmed 
the   judgment.      Defendant   then   appealed   to   the   Supreme    Court. ^^ 

ScHOLi^iULD,  J.  The  rule  in  this  state  is,  where  one  servant  is  in- 
jured by  the  negligence  of  his  fellow  servant,  their  duties  being  such 
as  to  bring  them  into  habitual  association,  so  that  they  may  exercise  a 
mutual  influence  upon  each  other  promotive  of  proper  caution,  and 
the  master  is  guilty  of  no  negligence  in  employing  the  servant  causing 
the  injury,  the  master  is  not  liable.  Stafford  v.  Railroad  Co.,  114  111. 
244,  2  N.  E.  185 ;  Railway  Co.  v.  Moranda,  93  111.  302,  34  Am.  Rep. 
168;  Railroad  Co.  v.  Gearv,  110  111.  383;  Railway  Co.  v.  Snyder,  128 
111.  655,  21  N.  E.  520;  Roiling  Mill  Co.  v.  Johnson,  114  111.  57,  29  N. 
E.  186;  Railroad  Co.  v.  Hoyt,  122  111.  369,  12  N.  E.  225.  It  follows, 
and  is  recognized  by  these  cases,  that  where  one  servant  is  injured  by 
the  negligence  of  another  servant  of  the  common  master,  but  not 
within  this  description  of  fellow  servant,  the  master  is  liable.  See, 
also,  Railroad  Co.  v.  May,  108  111.  288;  Railway  Co.  v.  Snyder,  117 
111.  376,  7  N.  E.  604;  Railroad  Co.  v.  Kelly,  127  111.  638,  21  N.  E.  203. 

In  all  actions  for  negligence,  the  burden  is  upon  the  plaintiff  to  al- 
lege and  prove  such  negligent  acts  of  the  defendant  as  will  entitle  the 
plaintiff  to  recover.  Railroad  Co.  v.  Harwood,  90  111.  425 ;  Railroad 
Co.  V.  Gregory,  58  111.  272 ;  Blanchard  v.  Railway  Co.,  126  111.  416,  18 
N.  E.  799,  9  Am.  St.  Rep.  630;  Patt.  Ry.  Ace.  Law,  §  373,  and  cases 
cited  in  note.  The  words  "defendant's  servants"  clearly  include  any 
and  all  of  defendant's  servants,  and  so,  necessarily,  it  is  not  sufficient 
here  merely  to  allege  and  prove  an  injury  to  the  plaintiff  from  the  neg- 
ligence of  the  defendant's  servants  generally,  for  it  is  just  as  consistent 
with  that  allegation  and  proof  that  the  defendant  is  free  of  liability  as 
that  it  is  liable-.  The  omission  to  allege  that  the  defendant's  servants 
causing  the  plaintiff's  injury  were  not  the  fellow-servants  of  the  plain- 
tiff, within  the  description  of  such  servants,  supra,  was  not  cured  by 
verdict,  because  the  denial  of  the  allegations  of  the  declaration  impos- 
ed no  duty  upon  the  plaintiff  in  that  respect.  When  he  had  proved 
that  he  was  injured  by  the  negligence  of  the  defendant's  servants,  he 
had  proved  all  that  he  had  alleged.  But,  since  the  defendant  was  not 
liable  merely  because  the  plaintiff  was  injured  by  the  negligence  of  the 
defendant's  servants,  he  was  entitled  to  contest  and  disprove  that  its 
servants,  by  whose  negligence  the  plaintiff  was  injured,  were  such 
servants  as  rendered  it  liable  to  the  plaintiff  for  their  negligence. 

The  rule  being  that  nothing  will  be  presumed  after  verdict,  but  what 
must  have  been  necessarily  proved  under  the  averments  of  the  declara- 
tion, the  court  erred  in  overruling  the  motion  in  arrest.  Chichester  v. 
Vass,  1  Call  (Va.)  83,  1  Am.  Dec.  509;  Bartlett  v.  Crozier,  17  Johns. 
(N.  Y.)  457,  8  Am.  Dec.  428.     *     :k     * 

71  This  short  statement  is  substituted  for  that  given  in  tlie  original  report.. 
A  iwrtion  of  the  opinion  is  omitted. 


Ch.  1)  CONCERNING  SUBSTANCE  469 

For  the  error  indicated,  the  judgments  below  are  reversed,  and  the 
cause  is  remanded  to  the  circuit  court,  with  leave  to  the  plaintiff,  if 
he  shall  be  so  advised,  to  amend  his  declaration,  and  for  a  trial  there- 
after de  novo/^ 


WALL  v.  CHESAPEAKE  &  OHIO  R.  CO. 

(Supreme  Court  of  Illinois,  1902.     200  111.  66,  65  N.  E.  6-32.) 

Wilkin,  J.  This  suit  was  begun  by  plaintiff  in  error  to  recover 
damages  for  occasioning  the  death  of  her  intestate,  as  it  is  alleged,  by 
reason  of  the  negligence  of  the  defendant  in  error.  To  a  second 
amended  declaration  containing  12  counts,  filed  on  January  5,  1900, 
the  court  sustained  a  general  demurrer ;  and  plaintiff  having,  elected 
to  stand  by  her  declaration  as  amended,  and  judgment  for  costs  having 
been  rendered  against  her,  she  appealed  to  the  appellate  court  for  the 
First  district,  where  the  judgment  below  was  affirmed,  and  the  case 
is  brought  to  this  court  upon  writ  of  error. 

The  question  is  one  of  pleading.  Plaintiff  in  error  insists  that  the 
court  erred  in  sustaining  the  demurrer.  The  first  four  counts  of  the 
declaration  are  alike,  except  the  allegations  as  to  the  place  where  the 
injury  was  received,  and  they  allege,  in  substance,  that  the  deceased, 
on  May  24,  1896,  while  accompanying  a  train  carrying  live  stock  and 
passing  through  the  city  of  Cincinnati,  and  while  he  was  riding  on  the 
top  of  one  of  the  cars,  there  being  no  other  safe  place  provided  by 
the  company  for  him  to  ride,  was  struck  by  a  bridge  or  viaduct  which 
crossed  over  the  track,  and  was  greatly  injured,  resulting  in  his  death. 
The  negligence  averred  is  that  the  defendant  failed  to  furnish  him  a 
safe  place  in  which  to  ride  while  caring  for  the  live  stock,  and  failed 
to  warn  him  of  the  danger  he  incurred  in  so  riding  in  the  place  pro- 
vided for  him  to  ride,  namely,  on  the  top  of  the  cars. 

From  the  face  of  the  declaration  it  appears  that  more  than  two  years 
elapsed  from  the  time  of  the  injury  to  the  bringing  of  the  suit,  and  it 
is  insisted  by  defendant  in  error  that  therefore  the  action  could  not  be 
sustained,  and  hence  the  defense  of  the  statute  of  limitations  could  be 
made  by  demurrer.  Mainly  on  this  ground  it  is  insisted  the  trial  court 
properly  sustained  the  demurrer.  In  equity,  where  it  appears  on  the 
face  of  the  bill  that  the  cause  of  action  is  barred  by  laches  or  the  stat- 
ute of  limitations,  the  defect  may  be  reached  by  demurrer  to  the  bill. 
But  the  rule  is  otherwise  in  common-law  pleading.  The  defendant 
cannot  demur  to  a  declaration  even  where  it  appears  on  its  face  that 
the  limitation  prescribed  by  the  statute  has  expired,  because  the  plain- 

7  2  Watters  v.  De  La  >ratter,  100  111.  Ar>p.  .334,  3.36  (190.3) ;  Lundquist  v. 
Child,  182  111.  App.  .585  (1913)  ;  Haskins  v.  Ralston.  09  Mich.  63,  67,  37  N.  W. 
45.  13  Am.  St.  Rep.  376  (1888) ;  Royce  v.  Oakes.  20  R.  I.  252.  38  .\tl.  371  (1S97) ; 
Winchester  v.  Carroll.  99  Va.  727.  738,  40  S.  E.  37  (1901)  (semble) ;  Berus  v. 
Gaston,  etc.,  Co.,  27  W.  Va.  285,  290,  55  Am.  Rep.  304  (1885),  semble.     Accord. 


470  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

tiff  would  thus  be  deprived  of  the  opportunity  of  replying  and  pleading 
any  matter  which  would  prevent  the  bar  from  attaching.  The  defend- 
ant must  plead  the  statute  if  he  wishes  to  avail  himself  of  it.  Gunton 
V.  Hughes,  181  111.  132,  54  N.  E.  895.  The  demurrer  to  the  first  four 
counts  was  therefore  improperly  sustained.'^^ 

Counsel  concede  that  under  our  practice  the  bar  of  the  statute  of 
limitations  cannot  be  availed  of  by  demurrer,  but,  on  the  contrary, 
admit  that  the  statute  must  be  pleaded,  for  the  reason  that  when  plead- 
ed the  plaintiff  is  thereby  afforded  an  opportunity  of  replying  that 
the  case  is  within  some  exception  to  the  statute ;  but  it  is  insisted  that 
the  bringing  of  the  action  within  two  years  after  the  date  of  the  in- 
jury is  a  condition  precedent,  and  not  a  limitation.  This  contention  is 
not  well  taken.  The  bringing  of  the  action  within  two  years  may  or 
may  not  be  a  condition  precedent  upon  which  the  plaintiff  can  recover. 
Each  case  must  depend  upon  its  peculiar  facts,  and  the  plaintiff,  as 
before  said,  should  be  given  an  opportunity  to  set  up  those  facts  if 
they  form  an  exception  to  the  statute. 

Other  counts  in  the  declaration  under  consideration  allege  matters 
in  avoidance  of  the  statute  of  limitations,  and  this  manner  of  pleading 
is  contrary  to  the  established  rules  and  precedents.  As  is  said  in  Gun- 
ton  v.  Hughes,  supra :  "It  follows,  as  a  logical  sequence,  that  the 
plaintiff  cannot  avail  himself  of  matter  in  avoidance  of  the  statute  by 
pleading  such  matter  in  his  declaration  before  the  statute  has  been 
set  up  as  a  bar  by  plea."  Such  counts  would  be  objectionable  under 
special  demurrer,  but  the  demurrer  under  consideration  is  general  only. 

Counsel  for  defendant  in  error  raise  other  objections  to  the  plain- 
tiff's declaration,  but  they  are  technical,  and,  in  our  opinion,  imma- 
terial. 

We  think  the  trial  court,  for  the  reasons  stated,  erred  in  sustaining 
the  general  demurrer  to  the  plaintiff's  declaration.  The  judgments  of 
the  appellate  and  circuit  courts  will  be  reversed,  and  the  cause  remand- 
ed to  the  circuit  court.    Reversed  and  remanded. 

Tsrimta  Gorda  Bank  v.  State  Bank,  52  Fla.  399,  42  South.  846  (1906): 
Renaokowskv  v.  Board  of  Water  Commif^sioners.  122  Mich.  613.  SI  N.  W.  581 
(1900) :  Callan  v.  Bodine.  81  N.  J.  Law,  240,  79  Atl.  1057  (1911) ;  Stile  v.  Finch, 
Cro.  Car.  381  (1635);  2  Wm's.  Sound.  62e,  note  0:  13  Ency.  PI.  &  Pr.  200;  25 
Cyc.  1394.     Accord.     Cf.  Dowell  v.  Cox.  108  Va.  460,  62  S.  E.  272  (1908). 


Ch.  1)  CONCERNING  SUBSTANCE  471 

SMITH  V.  WHITAKER. 

(Supreme  Court  of  Illinois,  1S49.     11  lU.  417.) 

This  was  an  action  in  debt  upon  an  appeal  bond,  given  before  a 
justice  of  the  peace,  brought  by  Whitaker  against  Smith  in  the  Han- 
cock Circuit  Court.  The  declaration  recited  the  bond  at  length.  The 
defendant  pleaded :  First,  non  est  factum ;  second,  that  there  is  not 
any  record  of  said  supposed  recovery  upon  the  trial  of  said  appeal ; 
and,  third,  that  there  is  not  any  record  of  the  said  supposed  judgment 
rendered  by  the  said  justice  remaining  on  the  docket  of  the  said  jus- 
tice in  his  court,  in  manner  and  form  as  recited  in  the  condition  of  the 
said  writing  obligatory.  On  the  first  and  second  pleas  issue  was  join- 
ed. To  the  third  plea  plaintiff  replied  that  defendant,  on  the  28th 
day  of  January,  1841,  made  his  said  writing  obligatory,  sealed  with 
his  seal,  etc.,  and  made  profert  thereof.  To  this  replication  defend- 
ant demurred,  and  demurrer  overruled. 

The  cause  was  submitted  to  the  court  for  trial.  Purple,  judge,  pre- 
siding, at  November  term,  1847.  A  judgment  was  rendered  for  the 
plaintiff  below,  for  the  sum  of  $250  debt,  to  be  satisfied  by  the  pay- 
ment of  $171.17,  the  damages  found,  and  costs  of  suit.  The  defend- 
ant below  sued  out  this  writ  and  assigned  the  errors. 

Treat,  C.  J.'*  First.  Was  the  demurrer  properly  sustained  to  the 
third  plea?  The  plea  alleges,  in  substance,  that  there  was  no  such 
judgment  before  the  justice,  as  is  recited  in  the  condition  of  the  bond 
sued  on.  The  defendant  was -estopped  by  the  record  from  making 
such  an  allegation.  The  bond  is  set  out  in  the  declaration,  and  it  dis- 
tinctly states  that  a  judgment  had  been  rendered  by  the  justice.  The 
very  object  of  the  parties  in  executing  the  bond  was  to  prevent  the 
collection  of  the  judgment  and  have  the  case  reheard  in  the  Circuit 
Court;  and  the  bond  was  expressly  conditioned  for  the  payment  of 
the  judgment,  in  the  event  it  should  be  affirmed.  It  was,  therefore, 
a  solemn  admission  by  the  defendant  that  there  was  such  a  judgment. 
He  voluntarily  entered  into  an  engagement,  under  his  hand  and  seal, 
for  the  payment  of  the  judgment;  and  he  could  not  afterwards  deny 
what  he  thus  deliberately  asserted  to  be  true — the  existence  of  the 
judgment.  The  principle  of  estoppel  is  clearly  applicable.  The  fact 
which  concluded  the  defendant  from  making  the  denial  appeared  on 
the  face  of  the  declaration ;  and  the  estoppel  was  rightly  insisted  on 
by  demurrer.  Where  the  matter  which  operates  as  an  estoppel  ap- 
pears in  the  declaration,  the  plaintiff  may  demur  to  a  plea  by  which  the 
defendant  attempts  to  set  up  the  same  matter  as  a  defence.  But  if 
the  matter  of  estoppel  does  not  appear  on  the  face  of  the  declaration, 
the  plaintiff  must,  by  a  replication  to  the  plea,  expressly  show  such 
matter,  and  rely  thereon.     The  following  authorities  abundantly  show 

74  A  portion  of  the  opinion  is  omitted. 
Whit.C.L.Pl.— .31 


472 


PRINCIPLES   OP   GENERAL  APPLICATION 


(Part  ?> 


that  the  doctrine  of  estoppel  appHes  in  this  case,  and  that  the  estoppel 
was  properly  raised  by  the  demurrer :  1  Chitty's  PI.  634,  635  ;  Rainsf ord 
V.  Smith,  Dyer,  196,  a;  Kemp  v.  Goodall,  2  Lord  Raymond,  1154; 
Palmer  v.  Elkins,  ibid,  1554;  Lainson  v.  Tremere,  1  Adolphus  &  El- 
lis, 792;  Bowman  v.  Taylor,  2  ibid,  278;  Trimble  v.  State,  4  Blackf. 
(Ind.)  435.  * 
Judgment  affirmed. 


*  75 


7  5  But  if  the  plaintiff,  instead  of  relying  upon  the  estoppel,  takes  issue  upon 
the  fact,  the  jury  may  find  the  truth,  notwithstanding  the  fact  that  the  es- 
toppel appears  upon  the  record.  Bartholomew  v.  Candee,  14  Pick.  (Mass.) 
167  (1S33). 


Ch.  2)  CONCERNING  FORM  473 

CHAPTER  II 
CONCERNING  FORM 


SECTION  1.— COMMENCEMENTS  AND  CONCLUSIONS 


COMMENCEMENT  OF  DECLARATIONS. 

(Chitty,  Pleading  [Am.  Ed.  of  1809]  *285  et  seq.) 
What  is  termed  the  commencement  of  the  declaration  follows  the 
venue  in  the  margin,  and  precedes  the  more  circumstantial  statement 
of  the  cause  of  action.  It  contains  a  statement:  1st,  of  the  names  of 
the  parties  to  the  suit,  and  if  they  sue  or  be  sued  in  another  right,  or 
in  a  political  capacity  (as  executors,  assignees,  or  qui  tam,  etc.)  of 
the  character  or  right  in  respect  of  which  they  are  parties  to  the  suit ; 
2dly,  of  the  mode  in  which  the  defendant  has  been  brought  into  court ; 
and,  3dly,  a  brief  recital  of  the  form  of  action  to  be  proceeded  in. 
It  is  obvious  that,  independently  of  express  regulation  or  precedent, 
some  introduction  to  the  substantial  statement  of  the  cause  of  action 
would  be  necessary,  and  the  commencement  adopted  in  practice  is  use- 
ful, as  pointing  out  that  the  defendant  is  duly  in  court  to  answer  the 
complaint,  and  concisely  intimating  the  character  in  which  the  parties 
sue  or  are  sued,  and  the  nature  of  the  action,  by  which  the  parties 
interested  in  the  pleadings  are  enabled  more  readily  to  direct  their 
attention  to  the  subsequent  parts  of  the  declaration.     *     *     * 

In  the  Exchequer  the  commencement,  after  stating  the  title  of  the 
court  and  term,  runs  thus :  "To  wit,  A.  B.,  a  debtor  of  our  Lord  the 
King,   cometh   before   the    Barons   of    his    Majesty's    Exchequer,    on 

,  the  day  of (the  return  day  of  the  process),  in 

this  same  term,  by  E.  F.,  his  attorney,  and  complains  by  bill  against 
C.  D.,  present  here  in  court  the  same  day,  of  a  plea  of  trespass  on  the 
case,  etc.    For  that  whereas,"  etc. 

In  suits  by  infants,  or  by  or  against  assignees,  executors,  attornies, 
etc.,  the  commencement  varies  from  the  above  forms.  Infants  are 
stated  to  sue  by  guardian,  or  prochein  ami.  The  representative 
character  of  assignees  and  executors,  should  be  stated  in  the  com- 
mencement, though  it  will  suffice  if  it  appear  in  the  other  parts  of  the 
declaration ;  and  in  actions  of  debt  by  or  against  executors  or  ad- 
ministrators, in  that  character,  the  words  "owes  to"  must  be  omitted 
in  the  commencement;  but  assignees  of  a  bankrupt  may  sue  in  the 
debet  and  detinet ;  an  executor  de  son  tort  is  stated  to  be  executor 
of  the  last  will  and  testament  of  the  deceased,  the  same  as  against  a 


474  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

rightful  executor ;  in  actions  by  or  against  attornies,  peers,  and  mem- 
bers of  parliament,  their  privilege  as  such  is  stated  in  the  introduction ; 
the  various  forms  are  so  numerous  that  I  have  here  only  mentioned 
those  which  most  frequently  occur  in  practice.^ 


CONCLUSION  OF  DECLARATION. 

(Chitty,  Pleading  [Am.  Ed.  of  1809]  *399  et  seq.l 

In  point  of  form  the  usual  conclusion  in  the  King's  Bench  "is  to  the 

damage  of  the  said  A.  B.  of  i ,  and  therefore  he  brings  his  suit," 

etc.  In  the  Common  Pleas,  the  conclusion  is,  "Wherefore  the  said  A. 
B.  saith  that  he  is  injured  and  hath  sustained  damage  to  the  value  (or 

'amount')  of  i ,  and  therefore  he  brings  his  suit,"  etc.     In  the 

Exchequer   the   form   runs,   "To  the   damage   of   the   said   A.   B.   of 

i ,  whereby  he  is  the  less  able  to  satisfy  our  said  lord  the  king 

the  debts  which  he  owes  his  said  majesty  at  his  Exchequer,  and 
therefore  he  brings  his  suit,"  etc.  By  the  above  words  "suit"  or 
"secta"  (a  sequendo)  were  anciently  understood  the  witnesses  or  fol- 
lowers of  the  plaintiff,  for  in  former  times  the  law  would  not  put  the 
defendant  to  the  trouble  of  answering  the  charge  till  the  plaintiff  had 
made  out  at  least  a  probable  case.  But  the  actual  production  of  the 
suit,  the  secta  or  followers  is  now  antiquated,  though  the  form  of  it 
still  continues.  In  actions  against  attorneys  and  other  officers  of  the 
court,  the  declaration  should  conclude  unde  petit  remedium  instead  of 
bringing  suit;  but  an  inaccurate  conclusion  in  this  case  is  no  cause  of 
demurrer;  however  in  one  case  on  a  special  demurrer  the  court  for 
the  sake  of  keeping  up  the  old  established  form  of  "prays  relief,"  etc., 
proposed  an  amendment  without  payment  of  costs.  When  the  action 
is  by  bill  against  a  member  of  the  house  of  commons,  the  bill  concludes 
with  a  prayer  of  process  to  be  made  to  the  plaintiff,  according  to  the 
statute,  etc., 

In  an  action  at  the  suit  of  an  executor  or  administrator,  immediately 
after  the  conclusion  to  the  damage,  etc.,  and  before  the  pledges,  a 
profert  of  the  letters  testamentary,  or  letters  of  administration  should 
be  made ;  but  in  scire  facias  the  profert  may  be  either  in  the  middle  or 
at  the  end  of  the  declaration ;  and  in  an  action  on  a  note  indorsed  to 
the  plaintiff  by  an  administrator,  no  profert  is  necessary,  because  the 
plaintiff  is  not  entitled  to  the  custody  of  the  letters  of  administration, 
which,  however,  must  be  proved  on  the  trial ;  and  the  omission  of  the 
profert  is  now  aided,  unless  the  defendant  demur  specially  for  the  de- 
fect. 

1  For  examples  of  commencements  of  declarations  in  the  various  forms  of  ac- 
tion in  the  King's  Bench,  in  Connnon  Pleas,  and  in  the  courts  in  this  country, 
see  parts  I  and  II,  supra,  pp.  25  et  seq.,  Gl  et  set].,  88  et  seq.  195,  220,  2SS 
et  seq.,  314,  370  et  seq. 


Ch.  2)  CONCERNING  FORM  475' 

COMMENCEMENT  AND  CONCLUSION  OF  PLEAS  AND 
SUBSEQUENT  PLEADINGS. 

(Stephen,  Pleading  [Williston's  Ed.]  *4.3.3-*440.) 

Pleadings  should  have  their  proper  formal  commencements   and 

conclusions. 

This  rule  refers  to  certain  formulae  occurring  at  the  commencement 
of  pleadings  subsequent  to  the  declaration,  and  to  others  occurring  at 
the  conclusion^ 

A  formula  of  the  latter  kind,  inasmuch  as  it  prays  the  judgment  of 
the  court  for  the  party  pleading,  is  often  denominated  the  prayer  of 
judgment. 

A  PLEA  TO  THE  JURISDICTION  has  usually  no  cc-mmencenient  of  the 
kind  in  question.    Its  conclusion  is  as  follows: 

*  *     *     the  defendant  prays  judgment,  if  the  court  of  our  Lady  the  Queen 
here  will  or  ought  to  have  further,  cognizance  of  the  plea  aforesaid. 

Or  (in  soiue  cases)  thus : 

*  *     *     the  defendant  prays  judgment  if  he  ought  to  be  compelled  to  answer 
to  the  said  plea  here  in  court. 

A  PLEA  IN  SUSPENSION  sccms  also  to  be  in  general  pleaded  without 
formal  commencement.    Its  conclusion  is  thus: 

*  *    *    the  defendant  prays  that  the  suit  may  remain  or  be  respited  without 
day  until,  etc. 

A  PLEA  IN  ABATEMENT  IS'  also  usually  pleaded  without  a  formal 
commencement  within  the  meaning  of  this  rule.  The  conclusion  is 
thus : 

In  case  of  plea  founded  on  objection  to  the  frame  of  the  original 
writ  (in  real  or  mixed)  or  the  declaration  (in  personal)  actions : 

*  *     *     prays  judgment  of  the  said  writ  (or  declaration),  and  that  the  same 
may  be  quashed. 

In  case  of  plea  f oimded  on  the  disability  of  the  party : 

*  *     *     prays  judgment  if  the  plaintiff  ought  to  be  answered  to  his  said 
declaration. 

A  PLEA  IN  BAR,  until  the  change  of  practice  introduced  by  a  recent 
rule  of  Hil.  T.  4  W.  IV,  had  this  commencement: 

*  *    *    says  that  said  plaintiff  ought  not  to  have  o.r  maintain  his  aforesaid 
action  against  him  the  said  defendant,  because  he  says,  etc. 

This  formula  is  commonly  called  actio  nan. 
The  conclusion  was : 

*  *     *     prays  judgment  if  the  said  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action  against  him. 

-  For  examples  of  commencements  and  conclusions  of  pleas  in  bar,  see  parts- 
I  and  II,  pp.  32,  ,3.3,  CG,  07,  170,  229-231,  337,  380,  supra. 


476  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  ?t 

But  as  these  expressions  were,  from  the  great  comparative  frequen- 
cy of  pleas  in  bar,  of  ahnost  continual  occurrence,  it  was  thought  de- 
sirable, for  the  sake  of  brevity,  to  abandon  altogether  the  use  of  for- 
mulae which  led  to  so  much  reiteration;  and  by  the  rule  of  court  just 
mentioned  it  was  accordingly  provided  that  in  future  it  should  not  be 
necessary,  where  the  plea  is  pleaded  in  bar  of  the  whole  action  gener- 
ally, to  use  any  allegation  of  actionem  non,  or  any  prayer  of  judgment, 
but  that  a  plea  pleaded  without  such  formal  parts  shall  nevertheless  be 
taken  as  pleaded  in  bar  of  the  action. 

A  re;plication  to  a  plea  to  thic  jurisdiction  has  this  commence- 
ment: 

*  *  *  says  that,  notwithstanding  anything  by  the  defendant  above  alleged, 
the  court  of  our  Lady  the  Queen  here  ought  not  to  be  precluded  from  having 
further  cognisance  of  the  plea  aforesaid,  because  he  says,  etc. 

Or  this  : 

*  *  *  says  that  the  defendant  ought  to  answer  to  the  said  plea  here  in 
court,  because  he  says,  etc. 

And  this  conclusion: 

*  *  *  wherefore  he  prays  judgment,  and  that  the  court  here  may  take 
cognisance  of  the  plea  aforesaid,  and  that  the  defendant  may  answer  over,  etc. 

A  RiiPLiCATiON  TO  A  plEa  IN  susPE^NSiON  should,  probably,  have 
this  commencement: 

*  *  *  says  that,  notwithstanding  anything  by  the  defendant  above  alleged, 
the  suit  ought  not  to  stay  or  be  respited,  because  he  says,  etc. 

And  this  conclusion'. 

*.  *  *  wherefore  he  prays  judgment  if  the  suit  ought  to  stay  or  be  respited, 
and  that  the  defendant  may  answer  over. 

A  REPLICATION  TO  A  PLEA  IN  ABATEMENT  has  this  Commencement: 
Where  the  plea  was  founded  on  objection  to  the  declaration: 

*  *  *  says  that  his  said  declaration,  by  reason  of  anything  in  the  said  plea 
alleged,  ought  not  to  be  quashed ;   because  he  says,  etc. 

Where  the  plea  was  founded  on  the  disability  of  the  party: 

*  *  *  says  that,  notwithstanding  anything  in  the  said  plea  alleged,  he,  the 
plaintiff,  ought  to  be  answered  to  his  said  declaration,  because  he  says,  etc. 

The  conchision  in  most  cases  is  thus :     • 
In  the  former  kind  of  plea : 

*  *  *  wherefore  he  prays  judgment,  and  that  the  said  declaration  may  be 
adjudged  good,  and  that  the  defendant  may  aiiswer  over,  etc. 

In  the  latter: 

*  *  *  wherefore  he  prays  judgment,  and  that  the  said  defendant  may  answer 
over,  etc. 

A  REPLICATION  TO  A  PLEA  IN  BAR,  before  the  rule  of  court  of  Hil. 
4  Will.  IV,  above  mentioned,  had  this  commencement: 

*  *  *  says  that,  by  reason  of  anything  in  the  said  plea  alleged,  he  ought 
not  to  be  barred  from  having  and  maintaining  his  aforesaid  action  against 
him  the  defendant,  because  he  says,  etc. 


I 


I 


Ch.  2)  CONCERNING   FORM  477 

This  formula  is  commonly  called  precludi  non. 
The  conclusion  was  thus : 
In  Debt: 

*  *  *  wherefore  lie  prays  judgment  and  his  debt  aforesaid,  together  with 
his  damages  by  him  sustained,  by  reason  of  the  detention  thereof,  to  be  ad- 
judged to  him. 

In  Covenant: 

*  *  *  wherefore  he  prays  judgment,  and  his  damages  by  him  sustained  by 
reason  of  the  said  breach  of  contract,  to  be  adjudged  to  him. 

In  Trespass: 

*  *  *  wherefbre  he  prays  judgment,  and  his  damages  by  him  sustained  by 
reason  of  the  committing  of  the  said  trespasses,  to  be  adjudged  to  him. 

In  Trespass  on  the  case,  in  Assumpsit: 

*  *  *  wherefore  he  prays  judgment,  and  his  damages  by  him  sustained  by 
reason  of  the  not  performing  of  the  said  several  promises  and  undertakings 
to  be  adjudged  to  him. 

In  Trespass  on  the  case,  in  general: 

*  *  *  wherefore  he  prays  judgment  and  his  damages  by  him  sustained,  by 
reason  of  the  committing  of  the  said  several  grievances,  to  be  adjudged  to  him. 

And  in  all  other  actions  the  replication,  in  like  manner,  concluded 
with  a  prayer  of  judgment  for  damages,  or  other  appropriate  redress, 
according  to  the  nature  of  the  action. 

But  the  rule  of  Hil.  4  W.  IV,  provides  that  no  allegation  of  actionem 
non,  or  precludi  non,  or  prayer  of  judgment,  shall  in  future  be  neces- 
sary in  any  pleading  subsequent  upon  a  plea  pleaded  in  bar  of  the 
whole  action  generally,  but  that  every  replication  or  subsequent  plead- 
ing, pleaded  without  these  formulas,  shall  nevertheless  be  taken  as  in 
bar  or  maintenance  respectively  of  the  action. 

With  respect  to  pli^adings  subskque;nt  to  the;  re;pi.ication,  it 
will  be  sufficient  to  observe  in  general  that  those  on  the  part  of  the 
defendant  commence  and  conclude  like  the  plea;  those  on  the  part  of 
the  plaintiff,  like  the  replication. 


BAILY  V.  SMITH. 
(Supreme  Court  of  Errors  of  Connecticut,  1701.     1  Root,  24H.) 

Action  of  ejectment  for  five  rods  of  land  and  a  house,  to  which  a 
special  plea  in  bar  was  given. 

The  plaintiff  replied  and  affirmed  new  matter  inconsistent  with  the 
title  set  up  by  the  defendant,  and  traversed  a  part  of  the  facts  set 
forth  by  the  defendant  to  make  out  his  title,  and  concluded  with  a 
verification. 

The  defendant  demurred  specially,  and  for  cause  assigned,  that  the 
plaintiff  ought  to  have  concluded  to  the  country. 

Judgment :    The  replication  sufficient.    Where  no  new  matter  is  re- 


478 


PRINCIPLES   OP   GENERAL   ARPLICATION 


(Part  3 


plied,  and  the  traverse  goes  to  all  the  facts  alleged  in  the  plea,  it  is 
regular  and  well  to  conclude  to  the  country.  For  in  that  case  a  per- 
fect issue  is  formed.  But  where  new  matter  is  replied,  or  the  traverse 
does  not  go  to  all  the  facts  in  the  plea,  the  reply  ought  to  conclude  with 
a  verification,  to  give  the  other  party  an  opportunity  to  answer  the 
new  matter,  or  to  demur  for  want  of  a  sufficient  traverse.  Cowper, 
575 ;  Sayre,  etc.,  v.  Minns,  2  Burr.  772 ;  Cornwallis  v.  Savery,  3 
Burr.  1725.3 


SECTION  2.— PUIS  DARREIN  CONTINUANCE 


PEMIGEWASSET  BANK  v.  BRACKETT. 

(Superior  Court  of  Judicature  of  New  Hampshire,  1829.     4  N.  H.  557.) 

Assumpsit  upon  a  promissory  note.  The  cause  was  tried  here  at 
November  term,  1828,  upon  the  general  issue,  when  it  was  admitted, 
that  the  defendant  made  the  note.  It  was  then  shown  in  evidence,  on 
his  part,  that  a  suit  was  commenced  by  the  plaintiffs  against  one  James 
Batchelder,  on  the  said  note,  the  same  having  been  made  by  said  Batch- 
elder  as  principal,  and  by  the  defendant  and  S.  A.  Pearson  as  sureties, 
and  that  judgment  was  rendered  in  the  said  suit  in  favour  of  the 
plaintiffs  in  the  court  of  common  pleas  for  this  county,  in  February, 
1827,  for  $180.51,  being  the  amount  then  due  upon  the  note;  that  an 
execution  issued  on  said  judgment,  was  delivered  to  a  deputy  sheriff 
in  April,  1827,  who,  on  the  28th  September,  in  the  same  year,  re- 
ceived of  this  defendant  the  amount  of  the  debt  in  said  execution,  and 
returned  the  same,  satisfied  as  to  the  debt,  and  not  satisfied  as  to 
the  costs,  and  afterwards  paid  over  to  the  cashier  of  the  bank  the  sum 
received  as  aforesaid.  This  suit  was  commenced  on  the  28th  May, 
1827. 

Upon  this  evidence,  a  verdict  was  taken  by  consent  for  the  plain- 
tiffs, for  the  sum  of  $5.40,  being  the  interest  on  the  note  from  the  time 
judgment  was  rendered  against  Batchelder,  till  the  time  when  the 
money  received  by  the  deputy  sheriff'  was  paid  to  the  cashier,  subject 
to  the  opinion  of  the  court  upon  the  foregoing  case. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 


3  "  *  *  *  Whenever  new  matter  is  introduced,  the  pleading  must  conchide 
with  an  averment.  *  *  *  Tlie  reason  is  obvious,  because  tlie  plaintiff  might 
otherwise  be  precluded  from  setting  forth  matter  which  would  maintain  his 
action,  though  the  matter  pleaded  by  the  defendant  be  true."  Spencer,  J.,  in 
Service  v.  Ileernumce,  1  Johns.  (N.  Y.)  91.  93  (180(1). 

"The  rule  is  tliat,  where  the  whole  substance  of  the  last  pleading  is  denied, 
the  conclusion  nuist  be  to  the  country ;  otherwise  the  pleadings  may  be  inter- 
minable, without  coming  to  a  formal  issue."  Wilde,  J.,  in  Sampson  v.  Henry, 
11  Pick.  (Mass.)  379,  386  (1831). 


Ch.  2)  CONCERNING  FORM  479 

The  question  is  whether,  upon  the  pleadings  in  this  case,  the  matter 
offered  in  evidence  by  the  defendant  is  a  legal  answer  to  the  action. 

The  manner  in  which  a  defendant  is  to  avail  himself  of  any  matter 
of  defense  which  he  may  have  depends  in  some  measure  upon  the  time 
when  such  matter  of  defense  arises;  whether  before  or  after  the  com- 
mencement of  the  suit;  and  there  are  different  forms  of  pleading 
founded  upon  this  circumstance.  The  law  makes  this  distinction  on 
account  of  the  costs  of  the  suit.  It  would  be  unjust  that  a  plaintiff 
who  had  rightfully  commenced  a  suit  for  a  just  cause  be  barred  by 
matter  arising  after  the  commencement  of  the  action,  and  subjected 
to  pay  all  the  costs  from  the  beginning.  To  prevent  this  injustice,  the 
law  compels  a  defendant  to  plead  matter  arising  after  the  commence- 
ment of  the  action  in  a  particular  manner,  that  the  court  may  be  en- 
abled to  settle  the  question  of  costs  on  just  principles. 

Where  a  defendant  has  a  good  defense  to  an  action,  at  its  commence- 
ment, he  may,  in  general,  avail  himself  of  it  upon  the  general  issue, 
and  when  he  cannot  thus  avail  himself  of  it,  he  can  plead  it  in  bar,  and, 
in  either  case,  if  he  prevail  in  the  suit,  he  is  entitled  to  costs. 

When  any  matter  of  defense  arises  after  the  commencement  of 
the  action,  and  before  plea  pleaded,  it  may  be  pleaded  in  bar  of  the 
further  maintenance  of  the  suit.  If  the  plaintiff  confesses  the  plea, 
the  action  stops,  and  the  defendant  is  allowed  no  costs.  If  the  plain- 
tiff elects  to  proceed  and  ultimately  fails  in  the  suit,  the  defendant  is 
entitled  to  his  costs  arising  after  the  plea  was  put  into  the  cause.  4 
B.  &  C.  117,  Lyttleton  v.  Cross. 

We  have  decided  that  a  general  release  given  after  the  commence- 
ment of  the  action  forms  an  exception  to  this  rule,  and  may  be  plead- 
ed in  bar  of  the  action  generally.  The  reason  of  this  is  that,  when  a 
general  release  is  given,  the  costs  of  the  suit,  up  to  the  time  of  the 
release,  are  presumed  to  have  been  adjusted,  and  cannot  be  made  the 
subject  of  any  contest  in  the  cause.  There  is,  therefore,  no  reason  why 
the  release  should  not  be  pleaded  as  a  general  bar.  Kimball  v.  Wilson, 
3  N.  H.  96,  14  Am.  Dec.  342.  But  in  such  a  case  the  release  must  be 
pleaded  according  to  the  fact  as  given  after  the  commencement  of  the 
action,  otherwise  it  cannot  be  admitted  in  evidence. 

When  any  matter  of  defense  arises  after  plea  pleaded,  it  must  be 
pleaded  puis  darrein  continuance,*  and  such  plea  is  a  waiver  of  all 
the  former  pleadings. 

■*  Brown  v.  Brown.  1.3  Ala.  20S,  48  Am.  Dee.  52  (1848) ;  Costar  v.  Davies,  S 
Ark.  218.  40  Am.  Dec.  .Sll  (1847);  Canfleld  v.  Eleventh  School  District,  19 
Conn.  .'520  (1849);  Straight  v.  Ilanchett.  2?,  111.  App.  584  (1887):  Jackson  v. 
Rich,  7  Johns.  (N.  Y.)  194  (1810)  :  17  Ency.  BI.  &.  Br.  260 :   ,31  Cyc.'  49:5.     Accord. 

For  the  distinction  between  the  manner  of  jileadinc;  matters  arisinc  after  the 
conniiencement  of  the  action  and  before  jilea  pleaded  or  issue  joined  and  that 
Oi  pleadinir  matters  arisinj;  after  plea  pleaded  or  issne  joined,  see  Sadler  v. 
Fisher's  Adm'r.  3  Ala.  200  (187D  ;  Kenyon  v.  Sutherland,  3  Oilman  (8  111.)  99 
(1849);  Rowell  v.  Harden,  40  Me.  582  (1S5."));  Sennnes  v.  Naylor.  12  Gill  &  J. 
(Md.)  358  (1842) ;  Cntter  v.  Folsom,  17  X.  II.  139,  119  (1815) ;  Le  I'.ret  v,  Papil- 
lon,  4  East,  502  (1804). 


480  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3 

Such  being  the  nature  and  objects  of  pleas  in  bar  of  the  further 
maintenance  of  actions,  we  should  suppose  from  the  nature  of  the 
thing,  that  the  matter  of  such  pleas  could  not  be  given  in  evidence  un- 
der the  general  issue  as  an  answer  to  the  action.  The  general  issue, 
as  well  as  pleas  in  bar,  goes  to  the  commencement  of  the  action.  1 
Tidd's  Practice,  592 ;    1  Chitty's  PL  472. 

It  seems  to  have  been  held,  in  Bird  v.  Randall,  3  Burr.  1345,  that 
matter  arising  after  the  commencement  of  the  action  might  be  given  in 
evidence  on  the  general  issue. ^  And  in  Sulivan  v.  Montague,  Doug- 
las, 110,  it  was  said  that  actio  non  went  to  the  time  of  plea  pleaded. 
But  it  is  now  settled  in  England  that  matter  of  defense  arising  after 
the  commencement  of  the  action  cannot  be  pleaded  in  bar  generally, 
but  must  be  pleaded  in  bar  of  the  further  maintenance  of  the  suit. 
1  Chitty's  PI.  655 ;  4  East,  507 ;  3  D.  &  E.  188 ;  Law's  PI.  in  As- 
sumpsit, 636,  666;  2  Esp.  N.  P.  Cases,  504;  1  Chitty's  PI.  531,  532. 
In  Storey  v.  Bloxam,  2  Esp.  N.  P.  C.  504,  Lord  Kenyon  said  it  was 
the  practice  to  give  payments  made  after  the  commencement  of  the 
action  in  evidence  under  the  general  issue.  But  there  is  no  adjudged 
case  in  which  it  has  ever  been  held  that  such  a  payment  can  be  given 
in  evidence,  on  the  general  issue,  as  an  answer  to  the  entire  action. 

In  Massachusetts  it  has  been  decided  that  whatever  in  assumpsit 
shows  a  satisfaction  to  have  been  received  by  the  plaintiff  before  trial 
may  be  given  in  evidence  on  the  general  issue.  Baylies  v.  Fettyplace, 
7  Mass.  325. 

And  in  a  writ  of  right  a  release  obtained  after  the  commencement  of 
the  action  was  held  to  be  evidence  upon  the  general  issue.  Poor  v. 
Robinson,  10  Mass.  131. 

But  in  Andrews  v.  Hooper,  13  Mass.  472,  it  was  decided  that,  in  a 
real  action,  a  title  obtained  after  the  commencement  of  the  action 
could  not  be  used  as  a  defense  in  any  shape,  and  the  court  speak  of 
the  decision  in  the  case  of  Sulivan  v.  Montague  as  not  law.  It  is 
therefore  probable  that  at  this  time  no  matter  of  defense  arising  after 
the  commencement  of  the  action  can  be  given  in  evidence  on  the  gen- 
eral issue  in  Massachusetts,  as  a  defense  to  the  whole  action. 

In  New  York  matter  of  defense  arising  after  the  commencement 
of  the  suit  must  be  pleaded ;  at  least,  their  reports  show  nothing  to 
the  contrary.  Palmer  v.  Hutchins,  1  Cow.  (N.  Y.)  42;  The  Bank  v. 
Moore,  2  Johns.  (N.  Y.)  294;  Palmer  v.  Mulligan,  2  Caines  (N.  Y.) 
380;  Broome  v.  Beardsley,  3  Caines  (N.  Y.)  172;  Brower  v.  Jones,  3 
Johns.  (N.  Y.)  229. 

5  The  Illinois  courts,  rel.ving  on  Bird  y.  Randall,  3  Burr.  1345,  hold  that  in 
actions  upon  the  case  any  defense  otherwise  admissible  under  the  general  is- 
sue is  properly  admitted,  though  it  arose  after  action  brought  and  was  not 
pleaded  specially  either  to  the  further  niaintenance  of  the  suit  or  piiis  darrein 
continuance.  Papke  v.  G.  H.  Hammond  Co..  192  111.  631,  61  N.  E.  910  (1901) ; 
Kapischki  v.  Koch,  ISO  111.  44,  54  N.  E.  179  (1899) ;  City  of  Chicago  v.  Bub- 
cock,  143  111.  35S,  32  N.  E.  271  (1892). 


I 

I 


Ch.  2)  CONCERNING   FORM  481 

When  matter  is  pleaded  puis  darrein  continuance,  it  is  a  waiver  of 
all  former  pleadings.  Why  is  this,  if  such  matter  is  evidence  upon  the 
general  issue?  In  Austin  v.  Hall,  13  Johns.  (N.  Y.)  286,  7  Am.  Dec. 
376,  a  release  obtained  after  the  commencement  of  the  action  was 
pleaded  in  bar  of  the  action  with  the  general  issue.  But  no  question 
appears  to  have  been  raised  upon  the  form  of  pleading. 

It  seems  to  us  that,  from  the  nature  of  the  case,  matter  arising  after 
the  action  brought  cannot  be  given  in  evidence  upon  the  general  issue, 
as  an  answer  to  the  action,  because  it  cannot  be,  in  its  nature,  an  an- 
swer to  the  action  generally,  but  only  to  the  further  maintenance  of  the 
action. 

If  such  matter  of  defense  can  be  so  used,  it  must,  from  the  nature 
■of  the  thing,  be  a  good  general  bar,  when  specially  pleaded ;  and  the 
rules  which  have  been  established  with  respect  to  pleas  in  bar  of  the 
further  maintenance  of  actions  are  idle  and  useless.  Indeed,  they  are 
worse  than  useless  with  respect  to  the  defendant,  because  they  deprive 
him  of  his  costs  in  cases  where,  -by  using  the  general  issue,  he  would 
be  entitled  to  them.  If  he  use  the  matter  as  a  defense  upon  the  gen- 
eral issue,  and  prevail  in  the  suit,  he  will  be  entitled  to  his  costs  from 
the  beginning.  If  he  plead  it  in  bar  of  the  further  maintenance  of  the 
suit  and  prevail,  he  will  be  entitled  at  most  to  costs  from  the  time  of 
firling  his  plea. 

It  will  be  convenient  in  practice  to  hold  defendants  to  plead  such 
matter  specially.  It  will  give  the  plaintiff  an  opportunity  to  elect 
whether  he  will  proceed  in  the  action,  and  the  question  of  costs  may  be 
settled  by  the  record.  We  see  no  reason  why  partial  payments  might 
not  be  permitted  to  be  given  in  evidence  upon  the  general  issue  to  re- 
duce the  damages,*^  but  we  are  clearly  of  opinion  that  payment  cannot  be 
so  given  in  evidence  as  an  answer  to  the  entire  action,  and  that,  in 
this  case,  there  must  be  judgment  on  the  verdict. 


DAVIS  V.  BURGESS. 

(Supreme  Court  of  Rhode  Island,  1892.     IS  R.  I.  85,  25  Atl.  848.) 

Matteson,  C.  J.  The  defendant  pleaded,  by  way  of  plea  puis 
darrein  continuance,  that  on  December  1,  1891,  he  in  his  capacity  as  ad- 
ministrator, before  payment  of  any  claim  against  the  estate  of  his  intes- 
tate, except  funeral  charges,  and  charges  for  medicine  and  attendance 
upon  the  intestate  in  his  last  sickness,  found  the  estate  of  his  intestate  in- 
solvent, and  represented  its  circumstances  and  condition  to  the  mu- 
nicipal court  of  Providence,  exercising  probate  jurisdiction,  and  the 
same  court  which  had  granted  to  him  letters  of  administration  on  the 

6  McMillian  v.  Wallace.  3  Stew.  (Ala.)  185  (18.10) ;  Hudson  v.  Johnson,  1 
Wash.  (Va.)  10  (ITOlj  ;  Hutchinson  v.  Hendrickson,  29  N.  J.  Law,  ISO  (1801). 
Accord. 


482  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

estate;  and  that  thereupon  said  court  adjudged  the  estate  insolvent, 
and  appointed  commissioners  to  receive  and  examine  the  claims  of 
creditors  of  the  estate,  and  allowed  six  months  to  the  creditors  to  bring 
in  and  prove  their  claims;  and  that  no  appeal  was  taken  from  the  de- 
cree of  the  court,  and  that  the  time  therefor  expired  on  January  10, 
1892.  To  this  plea  the  plaintiffs  replied  precludi  non,  because  said 
estate  was  not  represented  insolvent  and  commissioners  appointed, 
as  set  forth  in  the  plea,  until  after  the  expiration  of  more  than  two 
years  from  the  time  letters  of  administration  were  granted.  The  de- 
fendant demurred  to  the  replication.  The  court,  on  hearing,  over- 
ruled the  demurrer,  and  sustained  the  replication,  for  the  reason  that 
Pub.  St.  R.  I.  c.  186,  §  20,  provides  that  "the  pendency  of  any  com- 
mission, as  aforesaid,  shall  be  no  bar  to  any  action  against  the  exec- 
utor or  administrator,  as  aforesaid,  after  the  expiration  of  two  years 
from  the  time  letters  of  administration  were  granted." 

The  plaintiffs  thereupon  moved  for  judgment  on  the  ground  that 
the  plea  puis  darrein  continuance,  having  been  pleaded  in  bar,  was  a 
waiver  of  the  pleas  originally  filed,  and  that  the  cause  of  action  was 
admitted  on  the  record  to  the  same  extent  as  if  no  other  defense  had 
been  urged  except  that  contained  in  the  plea  puis  darrein  continuance. 

The  defendant  thereupon  moved  to  withdraw  his  plea  puis  darrein 
continuance,  that  he  might  rely  on  the  pleas  originally  filed.  At  a 
former  hearing,  before  a  single  justice  of  the  court,  the  motion  was 
denied;  the  justice  being  of  the  opinion  that  the  pleas  originally  filed 
were  waived  by  the  filing  of  the  plea  puis  darrein  continuance,  and 
that  the  case  should  stand  for  assessment  of  damages. 

Since  then  the  defendant  has  obtained  leave  to  reargue  the  question 
before  the  full  court,  and  has  reargued  it  with  greater  care  and  thor- 
oughness than  .at  the  former  hearing. 

There  is  no  doubt  that  the  filing  of  a  plea  puis  darrein  continuance, 
where  it  extends  to  the  plaintiff's  entire  cause  of  action,  and  not  mere- 
ly to  a  part  of  the  plaintiff's  claim  as  contained  in  a  particvilar  count 
in  the  declaration,  or  to  the  plaintiff's  remedy,  is  a  waiver,  of  the  pleas 
previously  filed. ^  Kimball  v.  Huntingdon,  10  Wend.  (N.  Y.)  675, 
679,  25  Am.  Dec.  590;  Yeaton  v.  Lynn,  5  Pet.  224,  231,  8  L.  Ed.  105 ; 
Wallace  v.  McConnell,  13  Pet.  136,  152,  10  L.  Ed.  95;  Chitty,  PI. 
*636,  ='^638.  The  rule  is  based  on  the  hypothesis  that  the  plaintiff,  by 
his  plea  puis  darrein  continuance,  abandons  the  original  defenses  set 
up,  and  substitutes  in  place  of   them  the   defense  contained  in  that 

7  Angais  V.  Trust  &  Sayings  Bank,  170  111.  298,  48  N.  E.  946  (1897) ;  Secftt 
V.  Brokaw,  6  Blackf.  (Incl.)  241  (1842) ;  INIorse  v.  Small,  73  Me.  565  (18S2) ; 
Webb  V.  Steele,  13  N.  H.  230  (1842);  Doe  v.  Sanderson,  18  N.  J.  Law,  426 
(1842);  Greer  v.  Sheppard.  2  N.  C.  96  (1799);  Woods  v.  White,  97  Pa.  222 
(1881) ;  Lincoln  v.  Thrall.  26  Vt.  304  (1854)  ;  Adler  v.  Wise.  4  Wis.  159  (1855) ; 
Barber  v.  Palmer,  1  Ld.  Raym.  693  (1701).  Accord.  Wright  v.  Evans,  53  Ala. 
103  (1875 :  by  statute) ;  Parkhill's  Adm'rs  v.  Lnion  Bank  of  Florida,  1  Fla. 
128  (1846:  by  statutory  construction) ;  Heyfron  v.  Mississippi  Union  Bank, 
7  Smedes  &  M.  (15  Miss.)  434  (1846:  probably  by  statutory  construction).  Con- 
tra. 


Ch.  2)  CONCERNING  FORM  483 

plea.  Hence  it  does  not  apply  to  its  full  extent  when  the  defense  set 
up  in  the  plea  puis  darrein  continuance  is  only  partial,  but  applies  only 
so  far  as  the  defense  so  pleaded  is  intended  as  a  defense.  Morris  v. 
Cook,  19  Wend.  (N.  Y.)  699.^  So,  too,  when  the  defense  thus  plead- 
ed merely  affects  the  remedy.  Rayner  v.  Dyett,  2  Wend.  (N.  Y.)  300 ; 
Lincoln  v.  Thrall,  26  Vt.  304.  In  such  cases  as  the  defense  set  up 
covers  not  at  all,  or  only  in  part,  the  merits  of  the  plaintiff's  claim, 
there  is  no  room  for  the  hypothesis  that  the  defendant  intends  to  waive 
his  defenses  set  up  in  the  original  pleas,  and  to  substitute  for  them  the 
partial  defense,  or  defense  affecting  the  remedy  only ;  and  therefore 
effect  is  given  to  the  plea  puis  darrein  continuance  as  a  waiver  only 
so  far  as  the  defense  it  contains  may  be  presumed  to  have  been  in- 
tended as  a  defense  to  the  merits. 

In  the  present  case  the  matter  set  up  in  the  plea  did  not  go  to  the 
merits  of  the  plaintiffs'  claim  at  all.  Its  purpose  was  simply  to  bring 
to  the  attention  of  the  court  the  pendency  of  the  commission  in  in- 
solvency, that  the  judgment,  if -any,  which  the  plaintiffs  should  ob- 
tain, in  case  of  their  election  to  proceed  with  the  suit  instead  of  prov- 
ing their  claim  before  the  commissioners,  might  be  limited  to  the  sur- 
plus of  the  estate  remaining  in  the  defendant's  hands,  for  the  pay- 
ment of  the  debts  of  the  intestate,  on  the  settlement  by  the  defendant 
of  his  account  with  the  court  of  probate,  after  deducting  therefrom  the 
amount  of  the  claims  allowed  by  the  commissioners.  The  plea  failed 
because  more  than  two  years  had  elapsed  from  the  granting  of  letters 
of  administration,  and  after  that  period  the  pendency  of  the  commis- 
sion did  not  affect  the  plaintiffs'  right  to  proceed  with  their  suit.  The 
plea,  however,  went  merely  to  the  plaintiff's'  remedy,  and  did  not  ap- 
ply to  the  merits  of  their  claim.  For  that  reason  we  are  of  the  opin- 
ion that  it  did  not  operate  as  a  waiver  of  the  pleas  originally  filed,  or 
preclude  the  defendant  from  urging  the  defenses  set  up  in  them. 

The  cause  will  stand  for  trial  before  a  jury  on  the  issues  presented 
by  the  pleadings ;  leave  being  given  to  the  defendant  to  withdraw  the 
plea  puis  darrein  continuance. 


SECTION  3.— PLACE 


MEHRHOE  BROTHERS'  BRICK  MANUFACTURING  CO.  v. 
DELAWARE,  LACKAWANNA  &  W.  R.  CO.  et  al. 

(Supreme  Court  of  New  Jersey,  ISS.S.     51  N.  ,7.  Law,  56,  16  Atl.  12.) 

Garrison,  J.°     The  plaintiff's,  who  operate  a  brickyard  at  the  town- 
ship of  Lodi,  in  the  county  of  Bergen,  on  the  bank  of  the  Hackensack 

8  Sanderlin  v.  Dandridge,  3  Humph.  (Tenn.)  09  (1S42).     Contra. 
0  Portions  of  the  opinion  are  omitted. 


484 


PRINCIPLES   OF   GENERAL  APPLICATION 


(Part  3 


river,  bring  this  action  against  the  defendants  for  unlawfully  obstruct- 
ing the  said  river,  whereby  the  boats  of  the  plaintiffs,  provided  for 
transporting  their  bricks  to  market,  were  prevented  for  a  long  period 
of  time  from  passing  down  said  river,  during  which  time  the  plain- 
tiffs bore  the  expense  of  their  keep,  together  with  the  loss  of  the  sale 
of  a  large  quantity  of  their  bricks. 

To  this  declaration  a  general  demurrer  is  interposed. 

The  causes  for  demurrer  are  reducible  to  three :  First,  *  *  *  . 
second,  that  there  is  no  sufficient  allegation  or  description  of  the  lo- 
cality of  said  obstruction  ;   third,     *     *     *  _ 

The  second  ground  of  demurrer  questions  the  sufficiency  of  the  de- 
scription of  the  location  of  the  obstruction.  The  contention  of  the  de- 
fendants is  that  this  is  a  local  action  requiring  a  particular  description 
of  the  gravamen. 

In  passing  upon  this  objection,  it  must  be  borne  in  mind  that  the 
action  in  the  present  case  is  not  for  damages  for  an  injury  done  to 
realty,  or  arising  from  an  injury  to  any  real  right  of  plaintiffs.  It  was 
not  plaintiffs'  brickyard  that  was  injured ;  it  was  their  right  to  dispose 
of  their  bricks.  If  such  a  cause  of  action  be  called  "local,"  it  is  by 
force  of  precedent,  and  not  upon  the  essential  principles  upon  which 
the  division  of  actions  into  local  and  transitory  is  based. 

Mr.  Stephens,  in  his  brief  sketch  of  trial  by  jury  traces  the  history 
of  the  practice  of  "laying  the  venue  truly"  from  the  period  when  the 
jury  were  summoned  as  witnesses  down  to  the  time  of  the  change 
whereby  they  became  judges  of  fact  from  the  testimony  of  others. 
He  shows  that  in  the  former  case  it  was  of  essential  importance  that 
the  jury  should  have  personal  knowledge  of  the  facts,  and  hence  that 
the  venue  should  be  laid  truly  at  the  place  where  the  facts  arose; 
whereas,  after  the  latter  change,  this  became  a  matter  of  no  practical 
importance. 

"A  diff'erence,"  says  this  learned  writer  (Steph.  PI.  288),  "began 
now  to  be  recognized  between  local  and  transitory  matters.  The  for- 
mer consisted  of  such  facts  as  carried  with  them  the  idea  of  some  cer- 
tain place  comprising  all  matters  relating  to  realty,  and  hardly  any 
others."  The  rule,  as  it  soon  became,  is  stated  by  Mr.  Chitty  as  fol- 
lows (1  Chit.  PI.  268) :  "When  the  cause  of  action  could  only  have 
arisen  in  a  particular  place  or  county,  it  is  local,  and  the  venue  must 
be  so  laid."  This  author  speaking  of  the  extension  of  the  local  action 
to  certain  actions  for  damages,  merely  confines  it  in  terms  to  actions 
affecting  interests  in  real  property. 

The  distinction  thus  early  made  was  easy  of  application  where  the 
line  could  be  sharply  drawn ;  and  in  mixed  cases,  where  the  damage 
to  a  personal  right  was  inflicted  by  interference  with  a  right  in  real 
property,  as  an  easement,  the  courts  leaned  to  the  side  of  holding  it 
a  local  action.  This  was  in  principle  a  departure  from  the  original 
distinction,  for  all  of  the  essential  reasons  for  the  division  were  no 
longer  applicable,  since  the  cause  and  result  of  such  injuries  might 


Ch.  2)  CONCERNING  FORM  485 

be  in  different  places  or  counties ;  and  the  judgment,  to  have  effect, 
did  not  have  to  be  in  the  same  county  with  the  injury,  as  in  ejectment, 
real  actions,  or  proceedings  in  rem. 

Thus  there  arose  a  subdivision  of  local  actions  in  which  the  distinc- 
tion was  formal  merely.  This  led  Lord  Mansfield,  in  Mostyn  v.  Fa- 
brigas,  Cowp.  176,  to  say:  "There  is  a  formal  and  a  substantial  dis- 
tinction as  to  the  locality  of  trials.  I  state  them  as  different  things. 
The  substantial  distinction  is  where  *  *  *  the  eft'ect  of  the  judg- 
ment cannot  be  had  if  it  is  laid  in  the  wrong  place." 

Later,  Lord  Ellenborough,  in  Company  of  Mersey  v.  Douglas,  2 
East,  497,  which  was  an  action  for  diverting  the  water  of  a  navigable 
stream,  said :  "This  action  is  in  its  nature  confessedly  local,  but  the 
Cjuestion  is  whether  the  gravamen  need  be  described  with  any  local 
certainty,  and  I  incline  to  think  it  need  not,  but  that  it  is  sufficient  if 
it  be  laid  at  any  place  within  the  body  of  the  county,  *  *  *  for 
otherwise,  how  is  a  venue  to  be  laid  to  the  fact  of  the  obstruction, 
when  that  takes  place  in  the  higher  part  of  the  stream  flowing  in  one 
county,  and-  the  injury  is  sustained  in  the  lower  part  of  the  same 
stream  in  a  different  county,  in  which  the  action  is  brought?  It  is 
sufficient  to  describe  the  substance  of  the  injury  in  order  to  give  the 
other  party  notice  of  what  he  is  to  defend,  and  it  is  sufficient  in  the 
form  of  pleading  to  allege  the  gravamen  at  any  place  within  the  body 
of  the  county.  Therefore  the  manner  in  which  it  is  here  stated  ought 
rather  to  be  referred  to  venue  than  to  local  description." 

The  distinction  thus  indicated  has  been  preserved,  with  the  effect 
of  placing  outside  the  class  of  local  actions  requiring  a  particular  de- 
scription of  the  location  of  the  injury  all  those  actions  for  damages 
for  injuries  which  could  have  happened  in  some  other  place,  or  where 
recovery  of  real  property  is  not  sought. 

In  the  case  of  Livingston  v.  Jefferson,  1  Brock.  203,  which  was  tres- 
pass quare  clausum  fregit  against  a  former  president  of  the  L'nited 
States,  brought  in  the  circuit  court  for  the  district  of  Virginia,  for 
damages  for  removing  the  plaintiff'  from  the  batture  in  New  Orleans, 
Chief  Justice  Marshall  held  that,  where  the  action  was  for  damages, 
and  not  to  recover  real  property,  etc.,  the  distinction  between  local 
and  transitory  actions,  while  still  to  be  observed,  was  merely  technical. 
This  was  also  the  opinion  of  Chancellor  Walworth,  sitting  in  the  court 
of  errors,  in  the  case  of  Watts  v.  Kinney,  6  Hill  (N.  Y.)  82.  And  in 
Gibbons  v.  Ogden,  6  N.  J.  Law,  285,  it  was  held,  in  an  action  for 
restraining  the  plaintiff  (by  an  injunction  of  a  foreign  state)  from  navi- 
gating a  certain  highway  between  specified  points,  that  the  location  of 
the  tort  need  not  be  described. 

We  may  conclude,  then,  that  a  description  of  the  location  in  the 
present  action  is  not  a  substantial  averment,  and,  if  made  at  all,  is  to 
be  referred  to  matter  of  venue  only. 

The  practice  of  laying  the  venue  in  the  body  of  the  declaration  has, 
for  reasons  already  given,  become  a  mere  matter  of  form,  or,  in  the  Ian- 


486  PRINCIPLES  OF   GENERAL  APPLICATION  (Part  3 

guage  of  ]\Ir.  Stephens,  "an  unmeaning  form ;  the  venue  in  the  margin 
having  been  long  found  sufficient  for  all  practical  purposes."  Steph. 
PI.  282. 

This  practice  was  in  the  English  courts,  abolished  by  the  making  of 
the  rule  of  Hilary  Term,  4  Wm.,  which  provides  that  "in  future  the 
name  of  a  county  shall  in  all  cases  be  stated  in  the  margin  of  a  dec- 
laration, and  shall  be  taken  to  be  the  venue  intended  by  the  plaintiff, 
and  no  venue  shall  be  stated  in  the  body  of  the  declaration,  or  in  any 
subsequent  pleading." 

I  state  this  rule  as  showing  how  entirely  formal  the  practice  of  lay- 
ing a  venue  in  the  body  of  a  pleading  had  become  in  the  eyes  of  those 
who  shape  the  practice  of  the  English  courts. 

Since,  therefore,  an  affirmative  statement  of  the  location  of  the  ob- 
struction is  not  necessary  by  way  of  description,  and,  if  inserted  by 
way  of  venue  in  the  body  of  the  pleading,  would  go  to  a  matter  of 
form  only,  its  omission  is  no  ground  for  general  demurrer,  being  with- 
in the  operation  of  section  139  of  the  practice  act,  which  provides 
that  no  pleading  shall  be  deemed  insufficient  for  any  defect  which 
could  theretofore  be  objected  to  only  by  special  demurrer.  That  the 
objection  to  the  failure  to  state  the  venue  in  the  body  of  the  declara- 
tion is  within  the  operation  of  this  statute  was  decided  in  the  cases  of 
Reed  v.  Wilson,  41  N.  J.  Law,  29,  and  Gibbons  v.  Ogden,  6  N.  J.  Law, 
2g5^    *    *    *  10 


SECTION  4.— TIME 


GORDON  v.  JOURNAL  PUBLISHING  CO. 

(Supreme  Court  of  A^ermont,  190S.     81  Vt.  237,  69  Atl.  742.) 

Action  for  libel  by  Robert  T.  Gordon,  by  his  next  friend,  against 
the  Journal  Publishing  Company.  Judgment  for  defendant  on  demur- 
rer, and  plaintiff  excepts.    Affirmed  and  remanded. 

10  "Nor  is  the  want  of  a  venue  in  the  first  count  in  the  writ  any  objection  to 
a  recovery.  The  plaintiff  could  recover  if  that  count  was  struck  out  of  the 
writ.  Besides,  a  venue  in  -a  transitory  action  is  entirely  useless.  Venues  in 
transitory  actions  were  long  ago  abolished  in  England,  and  were  declared  un- 
necessary in  IMassachusetts  more  than  half  a  century  ago  (24  Pick.  398,  rule 
45);  and  we  think  they  should  be  allowed  to  become  obsolete  in  this  state. 
Of  course  these  remarks  are  not  applicable  to  local  actions.  In  local  actions 
a  proper  venue  is  still  necessary."  AA'alton,  J.,  in  Blackstone  National  Bank 
V.  Lane.  80  Me.  1G5,  169,  13  Atl.  683  (1888). 

In  transitory  actions  the  venue  need  not  be  proved  as  laid.  Owen  v.  IMc- 
Kean,  14  111.  459  (18.53)  ;  Smith  v.  Bull.  17  Wend.  (X.  Y.)  .323  (1837) ;  Platz 
V.  ]McKean  Township,  178  Ba.  601,  36  Atl.  136  (1888) ;  ]Mostyn  v,  Fabrigas,  1 
Cowp.  3  61  (1774). 

In  local  actions  where  the  wrong  venue  is  laid,  the  defect  is  one  of  sub- 
stance. White  V.  Sanborn,  6  N.  H.  220  (183.3) ;  Mayor  v.  Ewart,  2  W.  Bl.  1068 
<1776).     See  Crook  v.  Pitcher,  61  Md.  510  (1884). 


Ch.  2)  CONCERNING  FORM  487 

Tyi<Er,  J.^1  Case  for  an  alleged  libel.  The  defendant  demurs  to 
the  declaration,  and  assigns  several  causes  of  demurrer.     *     "'^'     * 

It  is  laid  down  in  the  text-books  that  the  allegation  of  the  time  of 
committing  injuries  ex  delicto  is  seldom  material  (1  Chit.  PI.  384) ; 
that  the  precise  day  on  which  a  material  fact  alleged  in  the  plead- 
ings took  place  is  in  most  cases  immaterial,  except  when  the  date  of  a 
record,  or  other  writing,  or  some  other  fact,  the  time  of  which  must 
be  proved  by  a  written  document,  is  alleged.  But  these  statements  are 
not  intended  to  relax  the  rule  given  in  all  works  on  pleading,  that  in 
personal  actions  the  pleadings  must  allege  the  time;  that  is,  the  day, 
month,  and  year  when  each  traversable  fact  occurred.  Stephen  on  PL 
291.  Gould  says,  on  page  79,  that  the  time  of  every  traversable  fact 
must  be  stated,  that  every  such  fact  must  be  alleged  to  have  taken  place 
on  some  particular  day.  The  requirement  of  certainty  is  not  relaxed 
by  the  rule  that  a  variance  between  the  time  alleged  and  the  proof 
is  not  fatal. ^-  It  is  evident  that  the  words  "or  about"  take  all  certainty 
from  the  allegation  and  virtually  leave  the  first  count  without  any 
time  stated.  .It  was  held  in  Cole  v.  Babcock,  78  Me.  41,  2  Atl.  545, 
that  the  word  "about"  rendered  the  allegation  of  the  time  indefinite 
and  uncertain.  See  Piatt  v.  Jones,  59  Me.  232,  and  State  v.  Baker, 
34  Me.  52.     The  first  count  must,  therefore,  be  held  insufficient.    *    *    * 

Judgment  affirmed  and  cause  remanded. ^^ 

11  Only  so  mucli  of  the  opinion  is  printed  as  deals  witli  the  plaintiff's  fail- 
ure to  allege  with  certainty  the  time  of  the  alleged  publication. 

12  That  such  a  variance  is  not  fatal,  where  the  time  alleged  is  not  material 
or  matter  of  description,  see  Crawford  v.  Camfield,  6  Ala.  15.3  (1844) ;  Sage  v. 
Hawley,  16  Conn.  106,  41  Am.  Dec.  128  (1844) ;  Searing  v.  Butler,  60  111.  575 
(1873) ;  Burbank  v.  Horn,  39  Me.  233  (185.5) ;  Rowland  v.  Davis,  40  INIich.  545 
(1879) ;  State  v.  Martin,  8  Mo.  102  (1843) ;  Drown  v.  Smith,  3  X.  H.  299  (1825) : 
Allen  V.  Smith,  12  N.  J.  Law,  159,  168  (1831) ;  Dox  v.  Dey,  3  Wend.  (N.  Y.)  3-56 
(1829) :  Stout  V.  Basse!.  2  Yeates  (Pa.)  332  (1798) ;  Kidder  v.  Bacon.  74  Yt. 
263.  271,  52  Atl.  322  (1902) ;  Purcell  v.  Macnamara,  9  East,  157  (1807).  The 
earlier  rule  was  that  such  variance  was  not  permitted  unless  the  immaterial 
date  was  alleged  under  a  videlicet.     2  Wms.  Saunders,  291d,  note  (h). 

13  In  addition  to  the  authorities  cited  in  the  opinion,  see  Opdycke  v.  Easton, 
etc.,  Co.,  68  N.  J.  Law,  12,  52  Atl.  243  (1902);  Timmerman  v.  Morrison,  14 
Johns.  (N.  Y.)  .369  (1817) ;  Denison  v.  Richardson,  14  East.  291  (1811) ;  1  Chitty, 
PI.  (16  Am.  Ed.)  272.  Accord.  The  date  must  be  alleged  as  before  the  com- 
mencement of  the  action.     Roud  v.  Grifiith,  11  Serg.  &  R.  (Pa.)  130  (1824). 

Whit.C.L.Pl.— 32 


488  PRINCIPLES   OF   GENERAL  APPLICATION  (Part 

SECTION  5.— DESCRIPTION 


HAYNES  V.  CRUTCHFIELD. 

(Supreme  Court  of  Alabama,  1844.     7  Ala.  189.) 

This  was  action  of  detinue  by  the  defendant  in  error  against  the 
plaintitT.  The  declaration  contains  two  counts,  each  of  which  charge 
the  detention  of  a  female  slave  named  Betty,  and  others  who  are  par- 
ticularly named;  also  many  articles  of  household  furniture,  planta- 
tion tools,  stock,  etc.,  which  are  described  generally,  by  their  respec- 
tive numbers.  To  each  of  these  counts  the  defendant  demurred,  but 
his  demurrer  being  overruled,  he  pleaded  the  general  issue,  and  the 
cause  was  thereupon  submitted  to  a  jury.  On  the  trial,  the  defend- 
ant excepted  to  the  ruling  of  the  Circuit  Judge.     *     *     * 

Collier,  C.  J.^*  1.  It  is  not  necessary  where  the  action  of  detinue 
is  brought  for  the  recovery  of  several  articles  that  the  value  of  each 
should  be  stated  separately  in  the  declaration;  but  generally  the  jury 
should  sever  the  value  of  each  by  their  verdict,  that  the  plaintiff  may 
recover  them  or  their  value,  severally,  in  satisfaction ;  and  the  de- 
fectiveness of  the  finding  in  this  respect,  it  is  said  cannot  be  supplied 
by  a  writ  of  inquiry.  1  Chitty's  Plead.  123,  124;  2  Steph.  N.  P.  1313; 
Pawly  v.  Holly,  2  W.  Black.  Rep.  853 ;  2  Stark.  Ev.  494,  495,  notes 
1,2. 

The  declaration  states  the  names  of  the  slaves,  the  number  of  beds, 
bedsteads,  etc.,  sought  to  be  recovered,  without  a  description  of  size, 
quality,  etc.,  and  this  we  think  is  quite  sufficient  upon  demurrer.  Det- 
inue lies  for  writings  whether  in  a  box  or  not,  and  it  is  not  neces- 
sary to  state  the  date  of  a  deed  in  a  declaration.  2  Bacon's  Ab.  317; 
2  Steph.  N.  P.  *1313.  So  it  may  be  maintained  for  money  in  a  chest 
or  bag;  for  particular  pieces  of  gold  or  silver;  for  so  many  ounces 
of  gold  or  silver;  or  for  an  infant  negro  naming  the  mother  without 
any  other  description.  3  Com.  Dig.  364;  Bass  v.  Bass,  4  Hen.  &  M. 
(Va.)  478 ;   Holladay  v.  Tittlepage,  2  Munf .  (Va.)  539. 

In  Boggs  V.  Newton,  2  Bibb  (Ky.)  221,  it  was  held,  that  a  declara- 
tion in  detinue  for  a  horse,  without  designating  the  animal  either  by 
name,  color,  size,  figure,  etc.,  is  bad ;  and  that  in  trespass  and  trover 
where  damages  only  are  recovered,  the  '  same  strictness  in  pleading 
is  not  required.  See  1  Chitty's  Plead.  123;  Buller's  N.  P.  49,  50;  2 
Saunder's  Rep.  74,  n.  2. 

Whether  the  case  cited  from  2d  Bibb  can  be  supported  we  need  not 
inquire ;  perhaps  it  may,  as  "horse"  is  a  generic  term,  and  it  is  easy  to 
specify  the  sex,  etc.     But  we  think  it  sufficient  to  declare  for  a  negro 

i*  Only  so  much  of  the  statement  of  facts  and  of  the  opinion  is  printed 
as  deals  with  the  ruling  of  the  Circuit  Judge  on  defendant's  demurrer. 


Ch.  2)  CONCERNING  FORM  489 

woman  by  name,  without  stating  her  complexion,  size,  age,  etc.;  or 
for  a  cow  without  describing  her  color,  mark,  brand,  etc. ;  or  for  so 
many  knives  and  forks,  without  mentioning  the  maker's  name,  the 
character  of  the  handles,  metal,  etc.  In  all  these  cases,  it  would  be 
difficult  by  any  circumlocution,  so  to  particularize  the  property  sued 
for,  as  to  enable  a  person  to  identify  and  distinguish  it  by  inspection. 
There  are  many  negroes,  as  well  as  cow^s,  knives  and  forks,  etc.,  which 
would  answer  any  reasonable  or  ordinary  description  that  could  be 
given  on  paper.  This  being  the  case,  the  declaration  is  sufficiently 
certain  as  applied  to  the  subject-matter,  and  to  require  more  would, 
in  many  instances,  be  a  denial  of  the  remedy  by  action  of  detinue, 
where  it  is  confessedly  proper ;  for  how  can  the  loser  or  bailor  of  a 
great  number  of  articles  describe  them  with  exactness  and  particu- 
larity? This  result  should  be  the  more  studiously  avoided,  as  the 
statute  has  made  the  action  of  detinue  a  more  efficacious,  safe,  and  in 
some  instances,  more  expeditious  remedy  than  trover.  See  Hilldreth 
v.  Becker  &  Harvey,  2  Johns.  Cas.  (N.  Y.)  339;  Coffin  v.  Coffin,  2 
Mass.  363.     *     *     i  ^^ 


DEMING  et  al.  v.  GRAND  TRUNK  R.  CO. 

(Supreme  Judicial  Court  of  New  Hampshire,  1869.     4S  N.  H.  455, 
2  Am.  Rep.  267.) 

Assumpsit.    Writ  dated  J\Iay  26,  1866. 

The  first  count  alleged  that  defendants  w'ere  common  carriers  by 
raihvay  from  Northumberland,  N.  H.,  to  Portland,  Me. ;  that  on 
February  22,  1866,  plaintiffs  at  the  request  of  defendants  delivered 
to  defendants  at  Northumberland  depot  "certain  goods  and  chattels, 
to  wit,  a  large  quantity  of  wool  of  the  plaintiffs,  to  wit,  seven  thou- 
sand eight  hundred  and  thirty-seven  pounds  of  wool,  of  great  value,  to 
wit,  five  thousand  dollars,  to  be  safely  carried  and  conveyed  by  the 
defendants,  by  and  on  said  railway,  from  the  depot  aforesaid  at  North- 
umberland aforesaid  to  Portland  aforesaid,  immediately  and  without 
delay,  after  said  wool  was  so  delivered  by  said  plaintiffs  to  said  de- 
fendants at  said  depot,  to  wit,  by  the  next  freight  train  of  cars  which 
should  go  over  and  upon  said  railway  from  said  depot  to  said  Portland 
after  said  delivery  of  said  wool  to  said  defendants  as  aforesaid,  and 
then,  to  wit,  at  said  Portland,  to  be  safely  delivered  by  said  defend- 
ants for  said  plaintiffs,  to  be  thence  transported  and  conveyed  for 
said  plaintiffs,  by  another  party  to  Boston  in  the  commonwealth  of 
Massachusetts."     *     *     * 

Bellows,  J.^"     In  this  case  it  is  objected  tliat  there  is  'a  variance 

15  Cf.  Bottomley  v.  Harrison.  2  Str.  809  (1729:  trover);  Slnuu  v.  Farrius- 
ton,  1  Bos.  &  P.  640  (1797 :  debt  on  bond).  For  a  full  discussion  of  the  rule 
requiring  greater  certainty  of  description  in  detinue  and  replevin  than  in 
trover,  see  Taylor  v.  Wells,  2  Wm's  Saunders,  74,  note  1  (1671). 

16  Only  so  much  of  the  statement  of  facts  and  opinion  as  deals  with  the 
question  of  variance  is  printed. 


490  PRINCIPLES   OF   GENERAL  APRLICATION  (Part  3 

between  the  amount  of  wool  delivered  to  the  defendants,  as  alleged 
in  the  declaration,  and  the  amount  proved ;  the  allegation  being  that 
a  large  quantity  of  wool  of  the  plaintiffs,  to  wit,  7837  pounds,  was  so 
delivered,  and  the  proof  being  of  a  smaller  quantity.  The  inquiry 
is,  then,  whether  the  plaintiff  was  bound  to  prove  the  precise  amount 
laid  in  his  declaration ;  and  this  must  turn  upon  the  question  whether 
the  amount  so  stated  is  material  and  traversable  or  not.  If  it  is,  the 
consequences  of  a  variance  will  not 'be  avoided  by  the  fact  that  the 
allegation  is  under  a  videlicet.  On  the  other  hand,  if  the  matter  is 
not  material,  the  party  is  not  concluded  by  the  allegation  in  this  form. 
1  Ch.  PI.  10th  Am.  Ed.  317,  318,  and  cases;  2  Saund.  291  c,  note, 
where  it  is  said  by  Sergeant  Williams  that,  if  a  party  does  not  mean 
to  be  concluded  by  a  precise  sum  or  day  stated,  he  ought  to  plead 
it  under  a  videlicet,  for,  if  he  do  not,  he  would  be  bound  to  prove  the 
exact  sum  or  day  laid. 

In  the  present  case  the  action  is  brought  to  recover  damages  for 
not  transporting  in  due  time  a  large  lot  of  wool,  to  wit,  7837  pounds, 
of  great  value,  to -wit,  $5000;  and  it  is  obvious  from  the  form  of 
the  allegation  that  the  pleader  did  not  intend  to  bind  himself  to  the 
precise  amount  of  wool,  or  its  value,  as  stated  under  the  videlicet. 

Had  the  declaration  stated  the  contract  to  be  that  defendant  would 
transport  that  precise  amount  of  wool,  proof  of  a  different  amount 
might  have  been  a  variance,  as  being  a  different  contract  in  fact ;  but 
no  such  thing  is  stated  here.  The  material  allegations  are  that  plaintiff 
delivered  to  defendant  a  large  quantity  of  wool  which  the  defendant 
agreed  to  transport,  etc. ;  and  what  is  said  about  the  weight  and  val- 
ue is  much  as  if  stated  as  matter  of  estimate,  and  not  as  a  material 
part  of  the  contract.  Besides  the  variance  suggested  is  not  that  the 
contract  was  to  transport  another  and  different  quantity  of  wool,  but 
that  the  quantity  delivered  was  less  than  the  quantity  stated. 

It  is  very  clear,  we  think,  that  the  precise  quantity  delivered  was 
■^iiot  a  material  allegation;  and  no  issue  could  be  taken  upon  it,  any 
more  than  upon  the  allegation  as  to  value.  The  declaration  is  in  the 
ordinary  form  in  suits  against  common  carriers ;  and  we  find  nothing 
that  gives  any  countenance  to  the  idea  that  the  plaintiff  must  prove  the 
weight  and  value  of  the  goods,  precisely  as  alleged,  although  stated 
under  a  videlicet.  Such  a  doctrine  would  be  attended  with  great  in- 
convenience, amounting  in  many  cases  to  almost  a  denial  of  justice. 

In  Hamer  v.  Raymond  et  al,  5  Taunt.  789,  it  was  held,  in  an  ac- 
tion on  the  case  for  running  foul  of  posts  in  the  river  supporting  the 
plaintiff's  wharf,  that  it  was  not  necessary  to  prove  the  posts  or  wharf 
to  be  at  the  place  at  which  they  were,  under  a  videlicet,  alleged  to  be 
situate."     *     *     * 

Judgment  on  the  verdict. 

i7  For  a  discussion  as  to  the  office  and  effect  of  the  videlicet,  see  Cliitty, 
Pleading  (16th  Am.  Ed.)  *325  et  seq. ;    Will's  Gould,  Tleading,  221  et  seq. 


Ch.  2)  CONCERNING  FORM  491 

SECTION  6.— BILLS  OF  PARTICULARS 
BOGARD  V.  ILLINOIS  CENTRx\L  RY.  CO. 

(Court  of  Appeals  of  Kentucky,  1903.     116  Ky.  429,  76  S.  W.  170, 
3  Ann.  Cas.  160.) 

BuRNAM,  C.  J.  On  the  7th  of  October,  1902,  the  appellant,  Abe 
Bogard,  brought  suit  against  the  Illinois  Central  Railroad  Company  in 
the  McCracken  circuit  court  to  recover  damages  alleged  to  have  been 
suffered  by  him  by  reason  of  certain  alleged  acts  of  negligence  of 
appellee  in  the  operation  of  one  of  its  engines  and  train  of  cars  in 
McCracken  county.  The  petition  is  as  follows :  "The  plaintiff,  Abe 
Bogard,  says  that  he  is  a  citizen  and  resident  of  the  state  of  Kentucky 
and  county  of  McCracken,  and  that  the  defendant  is  a  corporation  au- 
thorized by  the  laws  of  Kentucky  to  operate  a  railroad,  and  is  now, 
and  was  at  all  times  hereinafter  named,  operating  and  running  a  rail- 
road in  and  through  the  county  of  McCracken  and  state  of  Kentucky, 
and  said  defendant  is  empowered  by  law  to  sue  and  be  sued,  contract 
and  be  contracted  with ;  and  heretofore,  and  within  the  last  twelve 
months,  while  engaged  in  operating  and  running  an  engine  along  its 
said  road  in  the  said  county  of  McCracken,  the  defendant,  without 
fault  or  negligence  on  the  part  of  the  plaintiff,  carelessly,  recklessly, 
and  wrongfully,  and  by  willful,  reckless,  and  wrongful  act,  ran  its 
engine  and  train  upon  and  against  plaintiff,  and  knocked  him  down, 
and  greatly  bruised  and  injured  his  legs,  thighs,  hips,  back,  spine,  arms, 
chest,  neck,  and  head,  and  made  plaintiff  sick  and  sore  for  many  days, 
and  plaintiff''s  said  injuries  are  permanent,  and  he  will  never  recover 
from  some  of  same ;  thereby  negligently  inflicting  upon  him  and  caus- 
ing him  to  suffer  great  bodily  pain  and  mental  agony,  and  causing  him 
to  lose  much  valuable  time,  and  to  incur  doctor's  bill  to  the  amount 
of  $25 ;  and  by  said  collision,  caused  by  the  negligence  and  wrongful 
act  of  defendant  running  its  engine  aforesaid  upon  plaintiff,  he  has 
been  damaged  in  the  sum  of  two  thousand  dollars  ($2,000).  Where- 
fore he  prays  judgment  against  the  Illinois  Central  Railroad  Company 
for  $2,000,  his  costs  herein  expended,  and  for  all  proper  relief."  The 
railroad  company,  at  the  appearance  term  of  the  action,  moved  the 
court  in  writing  to  require  the  plaintiff,  in  addition  to  the  facts  alleged 
in  his  petition,  to  state  the  date  of  the  injury  complained  of,  the  point 
where  it  occurred,  the  number  of  the  train  producing  it,  and  the  par- 
ties in  charge  thereof.  Over  the  objections  of  plaintiff,  the  motion 
was  sustained,  and,  declining  to  plead  further,  his  petition  was  dismiss- 
ed without  prejudice,  and  he  has  appealed  to  this  court. 

The  only  question,  which  arises  upon  the  present  appeal  which  is 
reviewable  in  this  court  is  whether  or  not  the  court  below  had  the 


492  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

power  to  grant  the  application  of  the  defendant,  and,  if  so,  whether 
the  facts  in  the  case  justified  their  exercise  herein.     If  it  has  exceeded 
its  authority,  we  have  jurisdiction,  and  it  is  our  duty  to  correct  the 
error  of  law.     There  is  no  uncertainty  or  indefiniteness  with  respect 
to  the  nature  of  the  charge  made  against  the  defendant.    The  difficulty 
under  which  the  defendant  claims  to  labor  is  that  the  plaintiff  has  not 
sufficiently   specified   the   facts   as  to   the  time   and  place  where  the 
alleged  acts  of    negligence  occurred  to  enable  it  to  intelligently  defend 
the  action.     The  defendant  operates  a  trunk  line  through  McCracken 
■county,  and  it  has  perhaps  50  miles  of  track  within  the  county.     In 
course  of  12  months  thousands  of  trains  pass  over  its  road,  operated  by 
hundreds  of  dift'erent  employes,  at  all  hours  of  the  day  and  night.    The 
plaintiff  necessarily  has  information  as  to  the  time  and  place  of  the 
accident,  whether  it  was  day  or  night,  whether  the  injury  was  in- 
flicted by  a  freight  or  passenger  train;   and  a  state  of  case  might  exist 
when  it  would  be  impossible  for  the  defendant  to  secure  this  informa- 
tion, so  necessary  for  the  proper  conduct  of  its  defense.     When  such 
a  case  arises,  the  trial  court  has  inherent  power  to  require  such  in- 
formation to  be  furnished.     This  question  was  very  fully  considered 
in  the  case  of  Commonwealth  v.  Snelling,  15  Pick.  (Mass.)  321.     The 
opinion  in  that  case  was  delivered  by  Chief  Justice  Shaw.    It  was  held 
that  where  a  person  is  indicted  for  a  libel  containing  general  charges 
of  official  misconduct  against  a  magistrate,  the  court  was  authorized 
to  require  him  previously  to  the  trial,  in  case  he  intended  to  give  the 
truth  of  the  publication  in  evidence,  to  file  a  bill  of  particulars  specify- 
ing the  instances  of  misconduct  which  he  proposes  to  prove.     After 
a  thorough  review  of  all  the  authorities,  he  says :    "The  general  rule 
to  be  extracted  from  these  analogous  cases  is  that  \yhere,  in  the  course 
of  a  suit,  from  any  cause,  a  party  is  placed  in  such  a  situation  that 
justice  cannot  be  done  in  the  trial  without  the  aid  of  the  information 
to  be  obtained  by  means  of  a  specification  or  bill  of  particulars,  the 
court,  in  virtue  of  the  general  authority  to  regulate  the  conduct  of 
trials,  has  power  to  direct  such  information  to  be  seasonably  furnished, 
and  in  authentic  form."     In  Tilton  v.  Beecher,  59  N.  Y.  176,  17  Am. 
Rep.  337,  in  an  action  of  "crim.  con.,"  the  application  of  the  defendant 
for  a  bill  of  particulars  was  refused  by  the  trial  court  on  the  ground 
of  want  of  power  to  grant  the  bill.     Upon  appeal  to  the  Appellate 
Court  of  New  York  it  was  held  that  the  court  below  had  the  power  to 
grant  a  bill  of  particulars.     The  opinion  in  that  case  was  written  by 
fudge  Rapello,  and,  after  a  most  exhaustive  review  of  the  authorities, 
English  and  American,  bearing  upon  the  question,  said :    "In  action 
upon  money  demands  consisting  of  various  items,  a  bill  of  particulars 
of  the  dates  and  description  of  the  transactions  out  of  which  the  in- 
debtedness is  claimed  to  have  arisen  is  granted  almost  as  a  matter  of 
course;    and  this  proceeding  is  so  common  and  familiar  that,  when  a 
bill  of  particulars  is  spoken  of,  it  is  ordinarily  understood  as  referring 


Ch.  2)  CONCERNING  FORM  493 

to  particulars  of  that  character.  But  it  is  an  error  to  suppose  that 
bills  of  particulars  are  confined  to  actions  for  the  recovery  of  money 
demands  arising  upon  contract.  A  bill  of  particulars  is  appropriate 
in  all  descriptions  of  actions  where  the  circumstances  are  such  that 
justice  demands  that  a  party  should  be  apprised  of  the  matters  for 
which  he  is  to  be  put  for  trial  with  greater  particularity  than  is  re- 
quired by  the  rules  of  pleading. ^^  They  have  been  ordered  in  actions 
of  libel,  escape,  trespass,  trover,  and  ejectment,  and  even  in  criminal 
cases,  on  an  indictment  for  being  a  common  barrator,  on  an  indictment 
for  nuisance,"  etc.,  and  concludes  as  follows :  "A  reference  to  a  few 
of  the  authorities  upon  which  these  decisions  were  founded  will  show 
that  in  almost  every  kind  of  case  in  which  the  defendant  can  satisfy 
the  court  that  it  is  necessary  to  a  fair  trial  that  he  should  be  apprised 
beforehand  of  the  particulars  of  the  charge  which  he  is  expected  to 
meet  the  court  has  authority  to  compel  the  adverse  party  to  specify 
those  particulars  so  far  as  in  his  power."  A  full  discussion  of  the 
law  applicable  to  motions  of  this  character  is  found  in  3  En.  of  P.  & 
Pr.  517.  The  author  says:  "There  is  no  inflexible  rule  as  to  the  class 
of  cases  in  which  a  bill  of  particulars  will  be  granted,  but  it  rests  within 
the  sound  judicial  discretion  of  the  court,  to  be  exercised  only  in  fur- 
therance of  justice."  "But  the  rule  is  quite  well  established  that  a 
party  will  not  be  obliged  to  furnish  facts  already  known  to  his  adver- 
sary, nor  when  the  means  of  ascertaining  the  facts  are  equally  accessi- 
ble to  both  parties."  We  are  of  the  opinion  that,  upon  a  proper  show- 
ing that  defendant  did  not  have  the  information,  or  the  means  of 
readily  ascertaining  the  time  when  and  place  where  the  accident  occur- 
red, and  whether  it  occurred  during  the  day  or  night,  or  was  inflicted 
by  a  freight  or  passenger  train,  that  the  plaintiff  should  be  required  to 
furnish  such  information,  if  in  his  power.  But  it  is  not  necessary  or 
proper  in  an  action  for  personal  injuries  that  the  petition  should  set  out 
specifically  the  injuries  complained  of,  or  the  details  of  the  alleged 
acts  of  negligence  of  the  defendant  in  inflicting  the  injury.  In  our 
opinion,  the  trial  court  erred  in  sustaining  the  motion  to  require  the 
plaintiff  to  give  the  number  of  the  train  producing  the  injury,  or  the 
names  of  the  parties  in  charge  thereof.  It  is  not  at  all  probable  that 
such  information  is  in  his  possession,  and,  if  the  identity  of  the  train 
inflicting  the  injury  is  established,  the  means  of  ascertaining  these 
facts  are  more  accessible  to  the  defendant  than  to  the  plaintiff.  Nor 
should  the  motion  have  been  sustained  at  all  without  some  showing  by 
the  defendant  by  affidavit  or  otherwise  that  it  did  not  have  the  required 
information,  or  reasonable  means  of  obtaining  it. 

The  judgment  of  dismissal  is  therefore  reveVsed,  and  cause  remand- 
ed for  proceedings  not  inconsistent  with  this  opinion. 

1 8  For  numerous  cases  accord,  see  3  Encyc.  PL  &  Pr.  523,  524 ;   31  Cyc.  5GS, 
5G9. 


494  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

ASELTINE  V.  PERRY. 

(Supreme  Court  of  Vermont,  1903.     75  Vt.  208,  54  Atl.  190.) 

Assumpsit  by  A.  M.  Aseltine  against  William  Perry.  From  a  judg- 
ment for  defendant  on  a  referee's  report,  the  plaintiff  brings  excep- 
tions.    Affirmed. 

HasELTon,  J.  The  plaintiff  was  a  life  insurance  agent.  The  de- 
fendant, through  the  plaintiff's  agency,  made  application  for  insurance 
on  his  life;  and  the  plaintiff's  principal,  in  accordance  with  said  ap- 
plication, issued  to  the  defendant  a  policy  of  life  insurance,  and  de- 
livered the  same  to  the  plaintiff  for  the  defendant.  At  the  time  of 
said  application  the  defendant  executed  and  delivered  to  the  plaintiff 
two  notes,  the  consideration  for  which  was  an  agreement  that  the 
agent  should  pay  the  company,  for  the  insured,  the  amount  of  the 
first  premium,  which  was  $26.20.  This  the  plaintiff  did,  and  held  the 
insurance  policy  and  the  notes.  In  these  circumstances,  the  contract 
of  insurance  between  the  company  and  the  defendant  was  a  complete 
one,  and  the  notes  were  valid.  Porter  v.  Life  Insurance  Co.,  70  Vt. 
504,  41  Atl.  970. 

After  the  maturity  of  the  first  note,  but  before  the  maturity  of  the 
second,  the  agent  brought  suit  against  the  defendant  in  assumpsit,  de- 
claring on  the  common  counts  only.  By  his  specification  he  sought  to 
recover  the  premium  as  such.  He  introduced  the  notes  in  evidence, 
but  only  for  the  purpose  of  sustaining  his  specification.  On  the  trial, 
which  was  had  before  a  referee,  the  plaintiff  disclaimed  any  right  to 
recover  upon  the  above-mentioned  notes,  but  claimed  to  recover  in 
accordance  with  his  specification  only. 

The  plaintiff's  claim  and  specification  being  what  t'ney  were,  the 
court  properly  rendered  judgment  for  the  defendant  on  the  referee's 
report.  The  case  is  one  in  which  the  plaintiff  voluntarily  limited  his 
right  of  recovery  by  his  specification  and  the  position  taken  by  him  on 
trial.  Johnson  v.  Gate,  75  Vt.  100,  53  Atl.  329.  While  a.  specification 
is  no  part  of  the  declaration,  in  respect  to  subsequent  pleadings, ^^  it 
nevertheless  circumscribes  the  scope  of  the  evidence  and  the  plaintiff's 
right  of  recovery.-"    Bank  v.  Lyman,  20  Vt.  666,  Fed.  Cas.  No.  924; 

19  Royal  Phosphate  Co.  v.  Van  Ness,  53  Fla.  135,  43  South.  916  (1907)  ; 
Cicotte  V.  Wayne  County,  44  INIieh.  173,  6  N.  W.  236  (ISSO) ;  Voorhees  v.  Barr, 
59  N.  J.  Law,  123,  35  Atl.  651  (1890) ;  Dibble  y.  Kempshall,  2  Hill.  (N.  Y.)  124 
(1841);  Laphain  v.  Bri.i^.gs,  27  Vt.  26  (1854);  Chesapeake,  etc.,  Co.  v.  Stock 
&  Sons,  104  Va.  97,  106.  51  S.  E.  161  (1905),  semble ;  Abell  v.  Penn.,  etc.,  Ins. 
Co.,  18  W.  Va.  400  (1881)  ;  Riley  v.  Jarvis,  43  W.  Va.  43,  26  S.  E.  .366  (1896) ; 
Keuipster  v.  Purnell,  3  M.  &  G.  375  (1841).  Accord.  But  see  Attrill  v.  Pat- 
terson, 58  Md.  226,  238  (1882);  Benedict  v.  Swain,  43  N.  H.  33,  34  (1861); 
Fleurot  v.  Durand,  14  Johns.  (N.  Y.)  ,329  (1817). 

2"  Vila  V.  Weston,  33  Conn.  42  (1865),  semble:  Columbia  County  v.  Branch. 
31  Fla.  62,  12  South.  650  (1893),  semble :  Morton  v.  McClure,  22  111.  257  (1859) ; 
Commonwealth  v.  Snelling,  15  Pick.  (Mass.)  321  (1834)  ;  3  Encyc,  PI.  &  Pr. 
520 ;  31  Cyc.  570.  note  79.  Accord.  See,  also,  note  to  Brewster  v.  Sackett,  1 
Cow.  (N.  Y.)  571  (1823). 


Ch.  2)  CONCERNING  FORM  495^ 

Lapham  v.  Briggs,  27  Vt.  27.  It  may  be  amended  as  the  case  develops, 
and,  though  not  amended  in  terms,  it  may  be  treated  as  having  been 
amended,  if  the  course  of  the  trial  has  been  such  as  to  permit  it  to 
be  so  treated.  Greenwood  v.  Smith,  45  Vt.  37;  Bates  v.  Quinn,  56 
Vt.  49.  Here  the  specification  was  not  expressly  amended,  and  the 
claim  of  the  plaintiff  and  the  course  of  the  trial  were  such  that  it  can- 
not be  treated  as  having  been  amended  by  implication. 

It  is  obvious  from  the  record  that  the  plaintiff  would  have  had 
judgment  below  for  the  amount  of  the  matured  note,  but  for  the  er- 
roneous position  which  he  took  on  trial.  His  error  cannot  be  attributed 
to  the  court. 

Judgment  affirmed. 


SECTION  7.— DUPLICITY 


PEOPLE'S  NATIONAL  BANK  v.  NICKERSON. 

(Supreme  Judicial  Court  of  Maine,  1910.     106  Me.  502,  76  Atl.  937.) 

King,  J.  The  sole  question  presented  in  this  case  is  whether  a  dec- 
laration in  a  writ  of  entry  containing  in  one  count  several  distinct 
tracts  of  land  is  bad  for  duplicity. 

"Duplicity  in  a  declaration  consists  in  joining  in  one  and  the  same 
count  different  grounds  of  action,  of  different  natures,  or  of  the  same 
nature,  to  enforce  onlv  a  single  right  of  recovery."  Gould  on  Pleading 
(5th  Ed.)  p.  205,  §  99. 

In  Chitty  on  Pleading  (16th  Ed.)  vol.  1,  star  p.  249,  it  is  said:  "The 
plaintiff  cannot  by  the  common-law  rule,  in  order  to  sustain  a  single 
demand,  rely  upon  two  or  more  distinct  grounds  or  matters,  each  of 
which,  independently  of  the  other,  amounts  to  a  good  cause  of  action 
in  respect  to  such  demand." 

Mr.  Stephen  in  his  work  on  Pleading  says  (page  242)  "that  the  dec- 
laration must  not,  in  support  of  a  single  demand,  allege  several  mat- 
ters, by  any  one  of  which  that  demand  is  sufficiently  supported."  -^ 

The  distinction  between  the  combining  in  one  count  of  several  dis- 
tinct causes  of  action  and  duplicity  must  be  kept  clearly  in  mind.  That 
distinction  was  aptly  stated  in  Higson  v.  Thompson,  8  U.  C.  B.  561, 
562,  where  the  court  said :  "Duplicity  in  a  count  consists  in  supporting 

21  For  applications  of  this  iiile,  see  Nave  v.  Berry,  22  Ala.  3S2  (1S53 :  single 
breaches  of  separate  promises  in  same  contract) ;  Jarman  v.  Windsor,  2  Har. 
(Del.)  162  (1S37 :  same) ;  Fergiison  v.  National  Shoemakers,  lOS  Me.  189,  70 
Atl.  469  (1911:  several  specifications  of  negligence);  Laporte  v.  Cook,  20  R. 
I.  261,  3S  Atl.  700  (1S97 :    same). 


496 


PRINCIPLES   OF   GENERAL  APPLICATION 


(Part  3 


the  same  claim  on  several  distinct  grounds  not  in  laying  several  in- 
juries in  one  count." 

A  declaration,  therefore,  is  not  bad  for  duplicity  because  more  than 
one  cause  of  action  is  set  forth  in  one  count,  provided  not  more  than 
one  independent  and  sufficient  ground  or  matter  is  therein  alleged  in 
support  of  a  single  demand  or  right  of  recovery.-^ 

In  Piatt  v.  Jones,  59  Me.  242,  it  is  said:  "It  is  not  quite  accurate 
to  say  that  two  causes  of  action  in  one  count  render  it  double.  Sev- 
eral items  of  account  may  be  very  properly  embraced  in  one  count, 
and  yet  each  one  of  those  items  might  be  a  good  cause  of  action.  So 
in  the  case  of  several  trespasses  upon  the  same  lot  of  land." 

It  will  be  seen,  upon  examination  of  the  declaration  before  us,  that 
it  does  not  violate  the  rule  against  duplicity.  The  pleader  has  set  forth 
as  his  demand,  or  right  of  recovery,  the  right  to  the  possession  of  four 
distinct  tracts  of  land ;  the  ground  or  matter  alleged  in  support  of  his 
demand,  or  right  of  recovery,  is  that  the  defendant  has  disseised  him 
of  those  tracts.  If  the  declaration  is  to  be  construed  as  setting  forth 
in  one  count  a  separate  demand  for  each  of  those  tracts,  rather  than 
a  demand  for  them  all  combined,  there  is  no  duplicity,  because  there  is 
no  allegation  of  more  than  one  ground  relied  upon  in  support  of  each 
single  demand.  In  other  words,  if  there  is  but  one  demand,  or  right 
of  recovery,  set  forth — that  is,  the  demand  of  the  combined  tracts — • 
then  there  is  but  one  ground  relied  upon  in  support  of  that  demand, 
the  defendant's  disseisin ;  on  the  other  hand,  if  there  is  set  forth  a 
distinct  demand,  or  right  of  recovery,  for  each  tract,  still  there  is  but 
one  ground  relied  upon  in  support  of  any  of  those  distinct  demands, 
the  defendant's  disseisin.  In  neither  case  would  the  declaration  be 
bad  for  duplicity. 

In  addition  to  the  uniform  authorities  in  support  of  the  meaning  and 
application  of  the  doctrine  of  duplicity  as  defined  by  the  learned  au- 
thors above  quoted,  the  following  cases  are  directly  in  point  as  to  the 
particular  question  now  before  us :  Hotchkiss  v.  Butler,  18  Conn. 
287;  Den  v.  Snowhill,  13  N.  J.  Law,  23,  22  Am.  Dec.  496.  In  the 
latter  case  the  declaration,  like  the  one  at  bar,  contained  but  one  count 
for  several  tracts  of  land.  In  answer  to  the  position  there  taken,  that 
the  declaration  was  bad  for  double  pleading,  the  court  said:  "No  deci- 
sion or  authority  was  cited  to  show  the  legal  soundness  of  this  position, 
nor  can  I  yield  to  the  reasoning,  however  ingenious,  of  the  defend- 
ant's counsel.  On  the  contrary,  all  argliment,  all  convenience,  all 
analogy,  and  some  decisions  appear  to  me  to  hold  the  converse  of  this 
doctrine,  and  to  show  that  in  one  action  the  plaintiff  may  recover  sev- 
eral distinct  tracts,  and  claimed  under  different  titles,  if  from  all  he 


2  2  Setting  forth  more  than  one  eanse  of  action  in  one  count  is  a  fault  in 
pleading,  and  is  frequently  termed  duplicity.  See,  for  example,  Noetling  v. 
Wright,  72  111.  390  (1S74) ;  Patterson  v.  Wilkinson,  55  Me.  42,  92  Am.  Dec.  568 
(1867)  (semlile);  White  Automobile  Co.  v.  Dorsev,  119  Md.  251,  86  Atl.  617 
(1912) ;   Handy  v.  Chatfield,  23  Wend.  (N.  Y.)  35  (1840). 


Ch.  2)  CONCERNING   FORM  497 

has  been  unlawfully  ejected  by  the  same  defendant.  *  *  *  Three 
several  slanderous  charges,  entirely  unlike,  circulated  in  as  many  dif- 
ferent weeks,  may  be  redressed  in  one  suit.  So  may  three  several  bat- 
teries, perpetrated  as  many  months  asunder.  Under  a  single  count  for 
money  had  and  received,  the  plaintiff  may  prove  the  receipt  of  money 
to  his  use  by  the  defendant  from  divers  persons,  at  divers  times,  and 
on  occasions  wholly  disconnected.  A  bond,  a  note,  a  book  account,  a 
demand  for  rent  or  work  done,  may  be  included  in  one  declaration. 
Is  there  any  less  incongruity  in  these  combinations  than  for  a  plaintiff 
to  seek  by  one  action  to  be  restored  to  three  several  tracts  of  land 
lying  in  the  same  township,  from  which  he  complains  that  the  defend- 
ant has  on  the  same  day  dispossessed  him?" 

It  is  the  opinion  of  the  court  that  the  declaration  in  the  case  at  bar 
is  not  open  to  the  charge  of  duplicity. 

Exceptions  overruled.'^ 


RAYMOND  et  al.  v.  STURGES. 

(Supreme  Court  of  Errors  of  Connecticut,  1854.     23  Conn.  1.34.) 

In  addition  to  the  allegations  mentioned  in  the  opinion  below,  the 
declaration  alleged  in  substance  that  defendants  had  brought  suit 
against  plaintiff  to  foreclose  his  equity  of  redemption  in  a  certain 
tract  of  land,  had  brought  an  action  of  ejectment  to  eject  him  there- 
from, and  had  recovered  judgment  for  costs  in  the  ejectment  proceed- 
ing; that  before  decree  in  the  foreclosure  suit  plaintiff'  and  defend- 
ants agreed  that  the  time  for  redemption  should  be  limited  therein  to 
the  first  Monday  in  January,  1851 ;  that  defendants  procured  a  decree 
limiting  the  time  for  redemption  to  the  first  day  in  January,  1851,  and 
fraudulently  induced  plaintiff  to  believe  that  the  decree  limited  the 
time  to  redeem  to  the.  first  Monday  in  January,  1851 ;  that  relying 
thereon  plaintiff  omitted  to  redeem  within  the  time  limited  and  offered 
to  redeem  on  the  first  Monday  in  January,  1915;  but  that  defend- 
ants refused  to  permit  redemption  on  that  date.^* 

2  3  "If  at  common  law,  in  framing:  a  declaration  in  assumpsit,  the  early 
practice  was  to  make  each  demand  the  subject  of  a  separate  count,  such  de- 
mands were  later  emltraced  in  one  count,  and  were  treated  as  comprising  the 
consideration  of  but  a  single  promise.  Rooke  v.  Rooke.  Cro.  Jac.  24.5  (1611) ; 
Weblxn*  v.  Tivill,  2  Saund.  121,  b  (16S1).  A  recognition  of  this  rule  appears 
in  Whitwell  v.  Brigham,  19  Pick.  (Mass.)  117  (1S37),  where  a  declaration  con- 
taining all  the  monej-  counts  in  one  count  was  held  to  be  undoubtedly  good." 
Braley,  J.,  in  Noble  v.  Segal,  214  IMass.  159,  100,  100  N.  E.  1112  (1913).  See 
also  Griffin  v.  Murdock.  8S  Me.  254,  34  Atl.  .30  (1896) ;  Bailey  v.  Freeman,  4 
Johns.  (N.  Y.)  280  (1809) ;  Galway  v.  Rose,  6  Mees.  &  W.  291  (1840) ;  .Morse 
V.  James,  11  Mees.  &  W.  831  (1843);  Chitty,  Pleading  (16th  Am.  Ed.)  *353 ; 
Stephen,  Pleading  (4th  Am.  Ed.)  *269.     Accord. 

-■i  The  statement  of  facts  is  condensed,  and  only  so  much  is  printed  as  is 
necessary  to  an  understanding  of  the  portion  of  the  opinion  dealing  with  the 
question  of  duplicity. 


498 


PRINCIPLES   OF   GENERAL   APPLICATION 


(Part  3 


Storrs,  J.  The  first  question  in  this  case  is  whether  the  declara- 
tion sets  out  a  good  cause  of  action.     *     *     * 

The  remaining-  question  is  whether  it  is  bad  for  duplicity.  The  par- 
ticulars in  which  it  is  stated,  in  the  special  demurrer,  to  be  double,  and 
which  only  we  can  consider  on  a  demurrer  for  this  cause,  are  that  it 
sets  up:  1.  That  the  defendants  enforced  the  execution  issued  on 
their  judgment  in  the  ejectment  suit  mentioned  in  it;  2,  that  they  sold 
the  personal  property  of  the  plaintiff,  on  said  execution ;  3,  that  they 
violated  their  promises  to  the  plaintiff ;  and,  4,  that  they  deceived  and 
defrauded  the  plaintiff.  That  the  declaration  stated  a  good  cause  of 
action,  on  the  last-mentioned  ground,  has  been  shewn.  Whether  any 
other  is  sufficiently  set  forth  in  the  count,  so  that  a  judgment  on  it 
would  be  sustained  on  a  writ  of  error,  is  very  questionable.  Per- 
haps, however,  under  the  rules  respecting  duplicity,  if  the  plaintiff  has 
sought  to  recover  for  any  other  cause  of  action  in  that  count,  it  would 
be  no  answer  to  that  objection,  that  it  is  so  imperfectly  set  forth,  that, 
if  it  constituted  a  distinct  count,  it  would  be  demurrable.  But  we 
have  not  considered  it  necessary  to  examine  these  questions,  because 
we  are  of  opinion  that  if  any  other  cause  of  action  is  so  stated  in  this 
count,  that  it  would  not  be  exceptionable  either  in  substance  or  form, 
if  contained  in  a  distinct  count,  there  is  none  so  introduced  into  this 
declaration  as  to  render  it  liable  to  the  objection  of  duplicity.  In  or- 
der to  constitute  duplicity,  it  is  not  sufficient  that  a  count  in  a  declara- 
tion shows  merely  that  the  plaintiff  has  various  causes  of  action 
against  the  defendant,  although  the  contrary  might  be  inferred  from 
the  general  and  loose  definitions  of  duplicity,  in  some  of  the  elementary 
treatises  on  pleading.  It  is  necessary,  further,  that  those  various  caus- 
es of  action,  or  more  than  one  of  them,  should  be  claimed  and  relied 
on  as  distinct  grounds  of  recovery.  Dyer,  42b ;  Stephen  on  PI.  302. 
For,  if  it  appears  that  the  plaintiff  seeks  to  recover  upon  only  one  of 
them,  and  makes  no  claim  on  any  of  the  others,  as  a  distinct,  additional, 
or  independent  ground  of  recovery,  the  mere  circumstance  that  he 
has  other  valid  claims  against  the  defendant,  which  he  might,  but  does 
not,  seek  to  enforce  in  the  suit,  ought  not  to  deprive  him  of  a  re- 
covery on  the  cause  of  action  on  which  alone  he  seeks  to  recover.  And 
in  such  a  case  there  can  be  no  multiplicity  of  issues  to  avoid  which 
duplicity  is  discountenanced. 

Nor  is  the  introduction  of  facts  in  a  count  which  would  constitute 
a  distinct  cause  of  action  considered  as  duplicity,  where  such  facts 
are  stated,  not  as  a  ground  of  recovery  upon  them,  taken  by  themselves, 
but  only  as  constituting  part  of  the  entire  facts,  or  cause  of  action, 
on  which  the  plaintiff  relies  for  a  recovery.  According,  in  Bac.  Ab.  K. 
2,  duplicity  is  laid  down  to  be,  "Where  distinct  matters,  not  being  part 
of  one  entire  defence,"  or,  it  might  be  added,  ground  of  recovery,  "are 
attempted  to  be  put  in  issue."  The  defendant  cannot  distort  or  vary 
the  claim  which  the  plaintiff  has  chosen  to  make,  whatever  it  is,  in 


Ch.  2)  CONCERNING   FORM  499 

order  to  raise  an  objection  to  it.  Nor  does  the  statement  of  immaterial 
matter  in  a  declaration  make  it  double.  Steph.  PI.  301.  It  is  very- 
common  for  the  plaintiff,  especially  in  action  ex  delicto,  in  connection 
with  the  facts  on  which  he  claims  to  recover,  to  state  matters  from 
which  it  appears  that  he  has  another  cause  of  action  against  the  de- 
fendant, either  by  way  of  amplifying  or  strengthening  his  description 
of  the  cause  of  action  on  which  he  relies;  or,  perhaps,  from  a  mistaken 
idea  that  it  is  necessary  to  state,  not  only  the  main  facts  constituting 
his  claim,  but  also  the  evidence  of  those  facts  and  their  attending  cir- 
cumstances ;  or  to  show  the  extent  and  aggravated  character  of  the 
injury  of  which  he  complains;  but,  the  statement  of  these  matters 
being  unnecessary  and  immaterial,  it  has  never  been  considered  that 
they  rendered  the  declaration  double,  where  it  was  apparent  that  he 
did  not  rest  his  claim  to  recover,  upon  them. 

On  an  examination  of  the  declaration  of  this  case,  we  are  satisfied 
that  the  claim  of  the  plaintiff  ought  to  be  considered  as  founded  on  the 
fraud  and  deceit  practiced  on  him  by  the  defendants,  in  regard  to  the 
time  limited  for  the  redemption  of  the  premises  mortgaged  by  the 
plaintiff,  and  that  the  statement  of  the  other  matters  which  are  claim- 
ed by  the  defendants  as  setting  up  other  causes  of  action  was  made, 
not  with  a  view  of  introducing  any  new  or  distinct  ground  of  re- 
covery, but  only  for  the  other  purposes  which  we  have  mentioned. 
The  conduct  of  the  defendants,  under  their  execution,  in  dispossessing 
the  plaintiff'  of  his  land,  and  levying  on  his  personal  property,  and 
the  violation  by  the  defendants  of  their  promises,  are  evidently  not  in- 
troduced as  distinct  and  independent  causes  of  action,  but  for  the  pur- 
pose of  showing  the  original  fraudulent  scheme  of  the  defendants, 
the  manner  in  which  they  carried  it  into  effect,  and  the  extent  and  char- 
acter of  the  injury  inflicted  on  the  plaintiff".  The  objection  of  duplicity 
is  therefore  unfounded,  and  there  is  no  error  in  the  judgment  com- 
plained of. 

In  this  opinion  the  other  Judges  concurred,  except  Hinman,  J.,  who 
was  disqualified. 

Judgment  affirmed.^  ^ 

2  5  Seaboard  Air  Line  Ry.  v.  Rentz.  60  Fla.  449,  HI  South.  20  (1010);  Henry 
V.  Heldniaier,  22G  111.  152,  SO  N.  E.  705,  9  Ann.  Cas.  150  (1907) ;  Kins?  v.  Esta- 
brooks,  77  Vt.  371,  60  Atl.  84  (1905).  Accord.  Similarly  a  plea  or  replication 
is  not  double  where  all  the  fticts  alleged  therein,  no  matter  how  numerous, 
combine  to  establish  but  one  point.  ]McDaniel  v.  Grace,  15  Ark.  465  (1855) ; 
Sanderson's  Adm'r  v.  Thomas,  17  Fla.  468  (1880) ;  Kinney  v.  Turner,  15  111.  182 
(1853);  Porter  v.  P.raekenridse,  2  Blackf.  (Ind.)  385  (IS.'U)) :  P>ruce  v.  INIathers, 
2  Bibb.  (Ky.)  2*>4  (1811) ;  Potter  v.  Titcomb,  10  Me.  53  (1S33):  Hooper  v.  Jelli- 
son,  22  Pick.  (Mass.)  2.50  (1839) ;  Hunner  v.  Stevenson,  122  Md.  40,  89  Atl.  418 
(1913) ;  Horwitz  v.  American  Surety  Co.,  S3  N.  J.  Law.  402,  85  Atl.  219  (1912) ; 
Tucker  v.  Ladd,  7  Cow.  (N.  Y.)  450  (1827) ;  City  v.  Wistar,  92  Pa.  404  (1S80) ; 
McAleer  v.  Angell,  19  R.  I.  688,  36  Atl.  5S8  (1S97) ;  Robinson  v.  St.  Johnsburv, 
etc.,  Co.,  SO  Yt.  129,  66  Atl.  S14,  9  L.  R.  A.  (X.  S.)  1249,  12  Ann.  Cas.  1060 
(1907).     Accord. 


500  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3- 

STEPHENS  V.  UNDERWOOD. 

(Court  of  Commou  Pleas,  1838.    4  Biug.  N.  C.  655.) 

To  an  action  on  a  bill  of  exchange,  the  defendant,  the  acceptor, 
pleaded  that,  before  and  at  the  time  of  making  the  acceptance,  the 
defendant  was  unlawfully  imprisoned  by  the  plaintiffs,  and  others  in 
collusion  with  them,  and  was  then  and  there  detained  in  prison,  until 
by  the  force  and  duress  of  the  said  imprisonment  he  made  the  said  ac- 
ceptance ;  that  he  had  never  had  any  value  for  the  said  acceptance,  or 
for  paying  the  said  bill  of  exchange,  or  any  part  thereof  respective- 
ly; and  that  he  was  ready  to  verify. 

Demurrer,  for  that  the  plea  was  double  and  multifarious,  in  this, 
that  it  contained  two  separate  and  distinct  matters  of  defence  to  the 
said  count,  to  wit,  that  the  acceptance  of  the  said  bill  in  the  said 
count  mentioned  was  unlawfully  obtained  by  the  plaintiffs  from  the  de- 
fendant by  duress  of  imprisonment,  and  that  there  never  was  any 
value  or  consideration  for  the  said  acceptance ;  also  for  that  the  plea 
was  so  pleaded  that  the  plaintiffs  could  not  take  or  offer  any  certain 
issue  thereon.     Joinder. 

TiNDAL,  C.  J.  It  appears  to  me  that  this  plea  is  bad,  for  the  cause 
assigned  in  the  special  demurrer,  viz.  "that  it  contains  two  separate 
and  distinct  matters  of  defence,  to  wit,  that  the  acceptance  of  the  said 
bill  was  unlawfully  obtained  by  the  plaintiffs  from  the  defendant  by 
duress  of  imprisonment,  and  that  there  never  was  any  value  or  con- 
sideration for  the  said  acceptance."  ~^  The  answer  set  up  is  that  it 
is  not  bad  because  the  second  ground  of  defence  is  badly  pleaded ; 
but  the  plea  is  not  the  less  double  because  one  of  the  grounds  of  de- 
fence is  badly  pleaded.  In  Comyn's  Digest,  Pleader,  E.  2,  it  is  laid 
down  that  "a  double  plea  is  bad,  though  one  matter  or  the  other  be  not 
well  pleaded ;  as  in  trespass,  if  the  defendafit  pleads  molliter  nianus  im- 
posuit  and  a  release,  it  is  double,  though  the  release  is  not  well  pleaded. 
R.  1.  Sid.  176.  Though  but  one  of  the  several  matters  pleaded  be  ma- 
terial. Per  Dod.  Poph.  186."  Here,  notwithstanding  the  second 
branch  of  the  plea  would  be  ill,  on  special  demurrer,  yet  the  entire  plea 
is  ill,  for  the  cause  assigned. 

The  court  was  about  to  give  judgment  for  the  plaintiff,  when  ■ 

Mansell  prayed  and  obtained 

Leave  to  amend. ^'^ 

2  6  Munro  v.  King,  3  Colo.  238  (1877) ;  Beinis  v.  State.  3  Fla.  12,  16  (1850) ; 
Bui-rass  v.  Hewitt,  3  Scam.  (111.)  224  (1841) ;  Benner  v.  Elliott,  5  Blackf.  (Intl.) 
451  (1840) ;  Scott  V.  Whipple,  6  Greenl.  (6  Me.)  425  (1830) ;  Dunning  v.  Owen, 
14  Mass.  157  (1817) ;  Dudley  v.  Spaukling,  ,50  N.  H.  437  ("1870) ;  Connelly  v. 
Pierce,  7  Wend.  (N.  Y.)  129  (1831) ;  Luce  v.  Hoisington,  55  Vt.  341  (1883) ;  Stan- 
ton V.  Seymour,  5  McLean,  267,  Fed.  Cas.  No.  13,208  (1851).  Accord.  The 
same  rules  apply  to  the  replication  and  subsequent  pleadings.  See  cases  cited 
in  7  Encyc.  PL  &  Pr.  241 ;    31  Cyc.  262. 

27  Conover  v.  Tindall,  20  N.  J.  Law,  513  (1845);  Vauichau  v.  Everts,  40  Vt.. 
526  (1S6S) ;    Stephen,  Pleading  (4th  Am.  Ed.)  *259.     Accord. 


I 


Ch.  2)  CONCERNING  FORM  501 

ROSENBURY  v.  ANGELL. 

(Supreme  Court  of  Michigan,  1859.     6  Mich.  508.) 

Action  of  trespass  for  breaking  and  entering  plaintiff's  storehouse 
and  carrying  away  and  converting  certain  goods,  the  property  of  the 
plaintiff.  Defendant  pleaded  the  general  issue,  and  gave  notice  that 
he  would  prove  that  at  the  time  of  the  alleged  trespass  the  store- 
house and  goods  were  the  property  of  and  in  the  possession  of  one 
Wilber,  that  defendant  was  sheriff  of  Livingston  county,  and  took 
the  property  in  question  under  certain  writs  of  attachment.  The  no- 
tice fully  described  the  writs,  but  made  no  mention  of  the  affidavits 
which  were  by  law  required  to  be  annexed  to  the  writs. 

On  the  trial  defendant  was  permitted  over  plaintiff's  objection  to 
give  in  evidence  the  writs  with  the  affidavits  attached.  Plaintiff  ex- 
cepted. 

Verdict  having  been  rendered  for  defendant,  and  judgment  given 
thereon,  plaintiff  removed  the  cause  to  this  court  for  review  on  ex- 
ceptions.^^ 

Christiancy,  J.  The  first  error  relied  upon  in  this  case  presents 
the  question:  1st,  whether,  under  the  general  issue,  without  notice,  it 
was  competent  for  the  defendant  to  introduce  in  evidence  the  writs 
of  attachment,  with  the  affidavits  annexed ;  and  if  not,  2d,  whether 
the  notice  which  accompanied  the  plea  was  sufficient  to  authorize  the 
evidence  in  question. 

It  is  contended  by  the  counsel  for  the  defendant  that,  as  the  de- 
fense set  up  in  the  notice  denied  both  the  property  and  the  posses- 
sion of  the  plaintiff,  it  was  admissible  under  the  general  issue  with- 
out notice.  Doubtless  this  defense  did  amount  to  the  general  issue, 
without  reference  to  the  writs  of  attachment,  and,  if  found  for  de- 
fendant, would  render  the  writs  entirely  immaterial.  But  the  propo- 
sition— that  the  writs  were  therefore  admissible  under  the  general  is- 
sue— is  circular,  and  its  orbit  and  its  fallacy  may  be  readily  demon- 
strated. Thus,  if  to  authorize  the  evidence  it  be  necessary  to  look  to 
the  defensd  set  up  in  the  notice,  then  the  notice  itself  must  be  neces- 
sary. The  question  whether  the  proposed  evidence  was  admissible  un- 
der the  general  issue,  without  notice,  is  not  to  be  determined  by  the 
defense  set  up  in  the  notice,  but  by  the  nature  of  the  evidence  proposed 
— in  all  respects,  as  if  no  notice  had  been  given. 

It  is  well  settled  that,  at  common  law,  a  justification  of  this  kind, 
in  an  action  of  trespass,  must  be  pleaded  specially;  and  by  the  prac- 
tice before  the  statute  notice  of  it  must  have  been  given ;  and  the 
statute  (Comp.  L.  c.  124,  §  24)  requires  a  notice  in  all  cases  where  a 
special  plea  or  notice  would  have  been  required  before.     It  is  there- 

28  The  statement  of  facts  is  condensed,  and  only  so  much  thereof  and  of  the 
opinion  is  printed  as  deals  with  the  question  of  the  admissibility  of  the  writs 
and  affidavits  under  the  pleadings. 


502  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

fore  clear  that  the  proposed  evidence  was  not  admissible  under  the 
general  issue,  without  notice. 

But,  2d,  was  the  notice  sufficient  to  warrant  its  introduction. 

The  only  objection  to  the  sufficiency  of  the  notice  in  this  respect  is 
that  it  did  not  mention  the  affidavits  required  by  law  to  be  annexed, 
and  which,  in  this  case,  were  annexed,  to  the  writs.  And  it  is  con- 
tended that,  as  the  writs  could  be  no  justification  without  the  affida- 
vits, these  were  just  as  essential  as  the  writs,  and  notice  of  them  should 
have  been  given,  to  warrant  their  introduction,  or  that  of  the  writs 
themselves. 

The  rule  generally  laid  down  as  a  test  of  the  sufficiency  of  a  no- 
tice under  the  general  issue  has  been  that  the  notice  should  contain  all 
that  would  be  necessary  to  sustain  a  special  plea  on  general  demur- 
rer,"^ and  such  was  the  rule  laid  down  by  the  Supreme  Court  of  this 
state  in  Thompson  v.  Bowers,  1  Doug.  (Mich.)  321.  But  this  de- 
cision was  not  made  under  a  statute  like  that  applicable  to  the  pres- 
ent case ;  and  most  of  the  decisions  cited  by  counsel  in  support  of  the 
rule  were  under  statutes  or  rules  of  practice  differing  somewhat  from 
our  present  statute  upon  the  subject.  This  statute,  after  having  ex- 
pressly abolished  all  special  pleas  in  bar,  enacts  that,  to  entitle  a  de- 
fendant to  avail  himself  of  such  matter  of  defense,  he  "shall  annex 
to  his  plea  of  the  general  issue  a  notice  to  the  plaintiff,  briefly  stat- 
ing the  precise  nature  of  such  matter  of  defense." 

The  objects  of  a  special  plea  were  twofold:  1st,  To  apprise  the 
plaintiff  of  the  nature  of  the  defense  relied  upon,  so  that  he  might 
be  prepared  to  meet  it,  and  to  avoid  surprise  on  the  trial ;  and,  2d,  that 
an  issue  of  fact  might  be  formed  upon  it,  or  growing  out  of  it,  if  the 
plaintiff  chose  to  do  so ;  or  of  law,  if  he  chose  to  admit  its  truth  by 
demurrer;  and,  as  judgment  on  demurrer  must  be. a  judgment  upon 
facts  admitted  on  the  record,  by  the  parties  in  their  pleadings,  it  was 
necessary  the  matters  of  fact  should  be  set  out  with  such  certainty 
as  to  enable  the  court  to  decide  without  the  necessity  of  finding,  or 
supplying  by  intendment,  facts  not  necessarily  included  in  those  thus 
admitted. 

But  the  Legislature,  in  abolishing  special  pleas,  have  entirely  dis- 
pensed with  this  last  object  of  such  pleas,  requiring  by  the  .notice 
only  the  first,  viz.  that  the  plaintiff,  by  the  notice,  shall  be  apprised 
of  "the  nature  of  such  matter  of  defense,"  that  he  may  not  be  taken 
by  surprise  on  the  trial  by  a  defense  which  he  could  not  with  rea- 
sonable certainty  anticipate. 

No  issue  is  formed  upon  the  notice ;  the  only  issue  in  the  case  is  the 

2  9  Shepard  v.  Merrill,  13  Johns.  (N.  Y.)  475  (1816);  McClintock  v.  Inskip, 
13  Ohio,  21  (1844) ;  Fowler  v.  Colton,  1  Pin.  (Wis.)  331  (1843).  Accord.  See, 
also,  Briekett  v.  Davis,  21  Pick.  (Mass.)  404  (1838)  ;  Folsom  v.  Brawn,  25  N.  H. 
114  (18.52) ;  Thomas  v.  Mann,  28  Pa.  520  (1857) ;  Randall  v.  Preston,  52  Yt.  198 
(1879). 


Ch.  2)  CONCERNING  FORM  503 

general  issue.^"  The  notice  is  of  matters  intended  to  be  introduced 
under  that  issue. 

Such  being  the  only  object  of  the  notice,  its  sufficiency  ought  to  be 
tested  solely  with  reference  to  that  object,  rather  than  by  reference  to 
rules  applicable  to  a  demurrer  to  a  special  plea.  The  test  of  a  general 
demurrer,  it  is  true  may,  and  in  most  cases  probably  would,  produce 
the  same  result  (as  it  certainly  did  in  Thompson  v.  Bowers),  but  not 
necessarily  in  all  cases ;  and,  as  in  principle  it  is  not  the  true  test, 
we  think  it  cannot  be  allowed  to  prevail  where  it  comes  in  conflict 
with  the  test  above  indicated. 

Did,  then,  the  notice  in  this  case  sufficiently  indicate  the  nature 
of  the  intended  defense?  Did  it  apprise  the  plaintiff,  with  reason- 
able certainty,  that  the  affidavits  annexed  to  the  writs  would  be  of- 
fered in  evidence,  and  was  the  plaintiff  likely  in  any  way  to  be  mis- 
led by  the  omission  to  mention  them  in  the  notice? 

We  think  he  was  notified  with  reasonable  certainty,  and  that  he 
could  not  have  been  surprised  by.  this  omission.  It  is  true  defendant 
justified  the  taking  under  the  writ,  as  he  must,  and  not  under  the 
affidavits.  But  the  notice  of  the  writs,  and  the  justification  under  them, 
ought,  we  think,  for  all  purposes  of  such  notice,  to  be  held  notice  of 
every  thing  necessary  to  make  them  writs  of  attachment ;  and  with- 
out the  affidavits  .  made  on  the  same  day,  and  substantially  contem- 
I>oraneous  with  the  writs,  the  writs  would  have  been  waste  paper; 
they  would  have  been  in  no  sense  writs  of  attachment.  See  Buckley  v. 
Lowry,  2  Mich.  418.  When,  therefore,  the  plaintiff  received  notice 
that  the  writs  of  attachment  would  be  offered  in  justification,  he  must 
have  anticipated  the  affidavits  also,  without  which  the  writs  could 
have  no  existence.  To  hold  otherwise  would  be  adopting  a  degree  of 
technical  nicety  calculated  to  defeat,  rather  than  to  promote,  the  ends 
of  justice. ^^     *     *     * 


BARDONS  V.  SELBY. 

(Court  of  Exchequer  Chamber,  1S3.3.     3  Tyrwhitt.  4.30.) 

TiNDAi.iv,  C.  J.  This  question,  raised  for  our  consideration  upon 
this  writ  of  error,  arises  in  an  action  of  replevin,  in  which  Bardons, 

30  Curtis  V.  Gill.  .34  Conn.  49  (1867) ;  Bailey  v.  Valley  National  Bank.  127 
111.  3.32,  19  N.  E.  69.5  (1SS9) ;  Leslie  v.  Harlow,  18  N.  H.  518  (1847) :  ^IcCutchen 
V.  Ni£;h,  10  Sere.  &  R.  (Pa.)  344  (1823).  Accord.  Corthell  v.  Holmes,  87  Me. 
24,  32  Atl.  715  (1894).     Contra. 

31  McRae  v.  Lonsbv,  130  Fed.  17,  64  C.  C.  A.  385  (1904) ;  Clement  v.  Garland, 
53  Me.  427  (1866) ;  Edwards  v.  Clemons,  24  Wend.  (N.  !'.•)  480  (1840).  Accord. 
See,  also.  Cook  v.  Miller,  11  111.  610  (1850)  ;   Bangs  v.  Snow,  1  Mass.  181  (1804). 

Some  statutes  are  so  drawn  as  to  abolish  special  pleas ;    but  usually  notice 
under  the  general  issue  is  permitted  as  an  alternative.     Rut  both  cannot  be 
used  in  the  same  case.     Camp  v.  Allen.  12  N.  J.  Law,  1  (1S30) ;  Powers  v.  Rut- 
land R.  Co.,  83  Vt.  415,  76  Atl.  110  (1910). 
WHIT.C.L.PL.— 33 


504  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

one  of  the  defendants  below,  avows  as  collector  of  a  poor  rate,  and 
Jenkins,  the  other  defendant,  makes  cognizance  as  his  bailiff,  alleging 
in  the  4th  avowry  and  cognizance  that  the  plaintiff  was  an  inhabitant 
of  the  parish,  and  by  law  ratable  to  the  relief  of  the  poor  thereof, 
in  respect  of  his  occupation  of  a  tenement  situate  within  the  same; 
that  a  rate  for  the  relief  of  the  poor  of  the  said  parish  was  duly  as- 
certained, made,  signed,  assessed,  allowed,  given  notice  of,  and  pub- 
lished according  to  the  statutes,  and  that  by  the  said  rate  the  plaintiff 
was  duly  rated  in  the  sum  of  £1 ;  that  Bardons  as  collector  gave  him 
notice  of  the  rate  and  demanded  payment,  which  he  refused ;  that  the 
plaintiff  was  duly  summoned  to  appear  at  the  petty  sessions  to  be  held 
at  a  time  and  place  duly  specified,  to  show  cause  why  he  refused ; 
that  he  appeared  and  showed  no  cause ;  that  a  warrant  was  thereupon 
duly  made  under  the  hands  and  seals  of  two  justices  of  the  peace 
for  the  county  then  present,  directed  to  Bardons  the  collector,  com- 
manding him,  according  to  the  statute,  to  make  distress  of  the  plain- 
tiff's goods  and  chattels ;  that  the  warrant  was  delivered  to  Bardons, 
under  which  he  as  collector  avowed,  while  the  other  defendant  ac- 
knowledged the  taking  of  the  goods,  praying  judgment  and  a  return, 
etc.  The  plaintiffs  pleaded  in  bar  that  the  defendants  of  their  own 
wrong,  and  without  such  cause  as  was  alleged,  took  the  plaintiff's 
goods  and  chattels.  To  this  plea  there  was  a  special  demurrer,  assign- 
ing for  cause  that  the  plaintiff  by  his  plea  in  bar  sought  to  put  in 
issue  several  distinct  matters,  and  also  that  the  plea  in  bar  was  plead- 
ed as  if  the  avowry  and  cognizance  consisted  wholly  in  excuse  of  the 
taking  and  detaining,  and  did  not  avow  and  justify  the  same  and 
claim  a  return.  The  plaintiff  below  joined  in  demurrer.  There  were 
other  avowries  and  cognizances  pleaded  in  a  similar  form,  to  Avhich 
similar  pleas  in  bar  were  pleaded,  and  to  which  also  there  were  special 
demurrers  and  joinders  in  demurrer.  Upon  argument  before  the 
court  of  King's  Bench,  judgment  was  given  in  favour  of  the  plaintiff 
below  by  two  of  the  learned  judges  of  that  court,  the  late  learned  and 
much-lamented  chief  justice.  Lord  Tenterden,  having  given  judgment 
in  favour  of  the  defendants ;  and  the  question  raised  upon  the  rec- 
ord for  determination  is  this :  Whether  the  general  plea  in  bar  plead- 
ed by  the  plaintiff'  below,  by  which  all  the  several  matters  alleged  in 
the  avowry  are  put  in  issue,  is  a  good  plea  in  bar  or  not.  And  we 
are  all  of  opinion  that  such  plea  in  bar  is  a  good  plea,  and  that  the 
judgment  of  the  court  below  must  be  affirmed. 

It  may  be  convenient,  in  the  first  place,  to  advert  to  the  objection 
which  relates  to  the  form  of  action  in  which  this  general  plea  is  used, 
namely,  that  it  is  in  point  of  form  an  action  of  replevin,  not  an  action 
of  trespass ;  as  to  which  we  are  of  opinion  that  no  sound  distinction 
can  be  made  in  that  respect,  but  that  wherever  the  facts  pleaded  in 
bar  to  an  action  of  trespass  for  taking  goods  constitute  such  a  de- 
fence, that  the  plaintiff  may,  consistently  with  the  rules  of  law,  put  the 
whole  of  them  in  issue  by  the  general  replication  de  injuria  sua  propria 


I 


Ch.  2)  CONCERNING  FORM  505 

absque  tali  causa.  We  think  tlie  plaintiff  may  also  do  the  same  in  his 
plea  in  bar  to  an  avowry,  stating  the  same  identical  facts  as  a  defence 
in  an  action  of  replevin.  No  case  has  been  cited  before  us  in  which 
such  general  traverse  of  the  facts  stated  in  the  avowry  has  been  held 
bad,  simply  upon  the  ground  that  the  form  of  action  is  in  replevin  not 
trespass.^-  For  as  to  the  case  of  Jones  v.  Kitchen,  1  Bos.  &  P.  76,  the 
general  traverse  there  pleaded  in  bar  to  an  avowry  for  a  distress  for 
rent,  and  which  was  held  bad  in  that  case,  would  have  been  equally 
held  bad  if  it  had  been  replied  to  a  special  plea  in  trespass,  stating 
the  same  facts,  as  appears  from  the  case  of  White  v.  Stubbs,  2  Saund. 
R.  294.  It  cannot  therefore,  as  it  appears  to  us,  be  a  safe  ground 
of  decision  to  rest  the  validity  of  the  general  traverse  on  the  present 
•occasion,  not  upon  the  nature  and  character  of  the  facts  which  are 
put  in  issue  by  such  traverse,  and  upon  the  broad  question  whether 
they  constitute  one  single  defence  or  not,  but  upon  the  consideration 
that  the  question  arises  in  an  action  of  replevin.  The  only  ground  of 
distinction  that  has  been  suggested  is  that  the  defendant  in  this  case, 
by  claiming  a  return  of  the  goods,  asserts  a  right  and  property  in 
them,  and  therefore  brings  the  case  within  the  exception  in  Crogate's 
Case  "that  the  defendant  claims  property  or  an  interest  in  or  out  of 
the  goods  which  have  been  taken."  But  upon  reference,  as  well  to 
Crogate's  Case,  where  this  exception  to  the  general  rule  is  laid  down, 
as  also  to  the  several  cases  in  which  such  exception  has  been  held 
to  apply,  we  think  it  is  limited  to  instances  in  which  the  defendant 
has  claimed  by  his  plea  an  interest  in-  the  land  or  goods,  before  and 
at  the  time  of  the  trespass  complained  of.  In  replevin,  however,  it 
is  obvious  that  the  defendant  does  not  insist,  in  ordinary  cases  at 
least,  and  certainly  not  in  the  present  case,  upon  any  right  or  interest 
he  possessed  in  the  goods,  before  the  time  of  the  taking  complained 
of.  In  the  instance  of  a  distress  for  rent  in  arrear,  the  very  nature  of 
the  transaction  assumes  that  he  has  seized  the  goods  which  belonged 
to  his  tenant,  the  plaintiff,  his  sole  object  being  to  satisfy  the  rent 
out  of  the  tenant's  property,  and  the  prayer  for  a  return  of  the  goods,, 
etc.,  is  no  assertion  of  right  to,  or  interest  in  the  goods,  in  himself  the 
defendant,  but  is  a  prayer  that  the  plaintiff's  goods  may  be  returned 
by  the  sheriff,  in  order,  so  long  as  the  common  law  on  this  subject 
continued,  that  they  might  be  kept  by  the  defendant  as  a  pledge  for 
the  payment  of  the  rent,  and  since  the  alteration  of  the  common  law 
by  the  statute  2  W.  &  M.  c.  5,  in  order  that  they  may  be  sold  by  the 
defendant  in  satisfaction  of  the  arrears  of  rent  and  the  expenses.  In- 
deed it  is  evident  that  the  claim  of  interest  mentioned  in.  Crogate's 
Case  as  forming  an  exception  to  the  application  of  the  rule  there  laid 

32  That  the  replication  de  injuria  may  be  used  to  pleas  in  excuse  in  tres- 
pass, case,  replevin,  assumpsit,  covenant,  and  debt,  see  Stephen,  Pleading  (Wil- 
liston's  Edition)  *191,  and  cases  cited. 

For  full  discussion  of  its  use  in  plea  in  excuse  as  distin.^juished  from  plea 
in  discharge,  see  Muttleberry  v    Hornby,  6  U.  C.  Q.  B.  61  (1S49). 


506  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

down  must  mean  an  interest  anterior  to  and  independent  of  the  fact  of 
seizure,  from  the  instances  which  are  there  put,  of  a  right  of  common, 
or  a  right  of  way  or  passage,  and  the  Hke,  all  of  which  from  their 
nature  must  have  existed  in  the  party  before  the  trespass  was  com- 
mitted for  which  the  action  was  brought ;  we  think  therefore  no  dis- 
tinction can  be  satisfactorily  laid  down  between  the  rule  of  pleading 
as  to  the  point  in  question,  in  an  action  of  replevin  and  an  action  of 
trespass,  but  that  the  point  to  be  determined  is  whether  by  the  rules 
of  pleading  the  several  facts  alleged  in  the  4th  avowry  might  have  been 
put  in  issue  by  the  general  traverse,  if  they  had  been  contained  in  a 
plea  in  bar  to  an  action  of  trespass? 

And  although  it  may  be  very  difficult,  upon  principle,  to  account 
for  such  a  departure  from  the  general  object  which  the  rules  of  spe- 
cial pleading  have  in  view,  namely,  that  of  bringing  the  matter  in 
dispute  between  the  litigant  parties  to  one  certain  and  single  issue  of 
fact,  yet  we  think  the  present  case  falls  within  the  authority  of  judicial 
decisions  of  an  early  date,  and  which  have  been  constantly  adhered  to 
in  late  times,  and  we  feel  ourselves  on  that  account  bound  by  their  au- 
thority, and  no  longer  at  liberty  to  found  our  judgment  upon  the 
ground  of  expediency,  where  the  point  in  dispute  is  of  a  nature  and 
description  rather  to  be  governed  by  precedent  than  by  general  prin- 
ciples of  law. 

It  is  not  necessary  to  refer  to  any  earlier  decision  than  that  of  Cro- 
gate's  Case,  8  Co.  67,  as  an  authority  upon  the  present  question.  In- 
deed the  Year  Books  cited  in  that  case  do  not,  upon  reference,  throw 
much  light  or  any  degree  of  certainty  on  the  points  there  resolved. 
But  from  the  time  of  Crogate's  Case  (6th  James  1)  down  to  the  pres- 
ent period,  the  resolutions  of  the  court  made  in  that  case  have  as  to  the 
greater  part  been  considered  to  be  law. 

In  Crogate's  Case  the  defendant,  in  an  action  of  trespass  for  driving 
the  cattle  of  the  plaintiff,  pleaded  a  right  of  common  in  a  copyholder 
over  the  locus  in  quo,  by  prescribing  in  the  usual  way  in  the  name  of 
the  lord  of  the  manor ;  and  b^^cause  the  plaintiff  had  wrongfully  turned 
his  cattle  there,  the  defendant,  as  servant  of  the  copyholder,  and  by  his 
command,  justified  driving  the  cattle  out.  To  this  plea  the  plaintiff 
replied,  de  injuria  sua  propria  absque  tali  causa;  and  upon  demurrer 
it  was  adjudged  that  the  general  replication  in  that  case  was  insuffi- 
cient; and  Lord  Coke  then  proceeds  to  lay  down  four  resolutions  of 
the  court,  in  the  course  of  which  he  thus  states  the  nature  of  this 
general  plea,  viz.:  "The  general  plea  de  injuria  sua  propria,  etc.,  is 
properly  when  the  defendant's  plea  doth  consist  merely  of  matter  of 
excuse,  and  of  no  matter  of  interest  whatever." 

The  resolutions  of  the  court  are  these  four:  1st.  That  absque  tali 
causa  doth  refer  to  the  whole  plea,  and  not  only  to  the  commandment, 
for  all  makes  but  one  cause,  and  any  of  them  without  the  other  is 
no  plea  by  itself.  2dly.  It  was  resolved  that,  when  the  defendant  in 
his  own  right,  or  as  servant  of  another,  claims  any  interest  in  the  land, 


Ch.  2)  CONCERNING  FORM  507 

or  any  common,  or  rent  going  out  of  the  land,  etc.,  there  de  mjuria  sua 
propria,  etc.,  generahy  is  no  plea;  but  if  the  defendant  justify  as 
servant,  there  de  injuria  sua  propria,  etc.,  in  some  of  the  cases,  with 
a  traverse  of  the  commandments,  that  being  made  material,  is  good. 
3dly.  It  was  resolved  that  when,  by  the  defendant's  plea,  any  authority 
or  power  is  mediately  or  immediately  derived  from  the  plaintiff,  there, 
although  no  interest  be  claimed,  the  plaintiff  ought  to  answer  it,  and 
shall  not  reply  generally  de  injuria  sua  propria;  the  same  law  of  an 
authority  given  by  law  as  to  view,  waste,  etc.  Lastly,  it  is  resolved 
that  in  the  case  at  bar  the  issue  would  be  full  of  multiplicity  of  matter 
where  an  issue  ought  to  be  full  and  single,  for  parcel  of  the  manor 
demisable  by  copy,  grant  by  copy,  prescription  of  common,  etc.,  and 
commandment,  will  be  all  parcel  of  the  same.  The  questions  therefore 
appear  to  us  to  be  these  two  alone :  First,  whether  the  facts  pleaded 
in  the  avowry  bring  it  within  that  description  of  plea  to  which  the 
general  replication  is  admitted  in  Crogate's  Case  to  apply;  and,  sec- 
ondly, whether  the  case  falls  within  any  of  the  exceptions  laid  down 
by  the  court  in  their  resolutions  in  that  case. 

Now  the  facts  stated  in  the  avowry  are  the  inhabitancy  of  the  plain- 
tiff in  a  certain  parish,  and  his  liability  to  the  poor  rate  by  reason  of 
occupation;  the  making  of  a  poor  rate  for  the  parish,  with  all  the 
particular  observances  required  by  law;  notice  of  the  rate;  the  de- 
mand of  payment  and  refusal  to  pay;  the  summoning  before  the  jus- 
tices of  peace  in  petty  sessions  to  show  cause  for  his  refusal,  where 
no  cause  was  shown ;  the  issuing  of  a  warrant  by  the  justices  of  the 
peace;  the  delivery  of  the  warrant  to  one  of  the  defendants,  and  the 
distress  made  by  him  and  the  other  defendant  as  his  bailiff.  In  the 
first  place  these  facts  appear  to  us,  in  the  language  of  Crogate's  Case, 
to  consist  merely  ''upon  matter  of  excuse,  and  of  no  matter  of  interest 
whatsoever."  They  fall  within  the  principle  of  a  justification  under 
a  proceeding  in  the  admiralty  court,  the  hundred  or  county  court,  or 
any  other  which  is  not  a  court  of  record,  where  de  injuria,  etc.,  gen- 
erally is  good,  "for  all  is  matter  of  fact,  and  all  make  but  one  cause," 
as  is  stated  in  another  part  of  the  same  report.  The  case  now  under 
discussion  resembles  closely  that  which  is  last  referred  to ;  a  justifi- 
cation under  a  distress  warrant  for  a  poor's  rate  must  surely  be  the 
subject  of  general  traverse,  if  a  justification  under  the  process  of  the 
admiralty  court  is  held  to^be  so. 

It  remains  to  be  considered,  therefore,  whether  the  subject-matter 
of  the  avowry  brings  it  within  any  of  the  exceptions  which  are  laid 
down  in  the  leading  case  above  referred  to.  The  first  is  where  the  de- 
fendant in  his  own  right,  or  as  servant  to  another,  claims  any  interest 
in  or  out  of  the  subject-matter  of  the  action  of  trespass,  in  which  case 
the  general  traverse  would  be  bad.  The  interest  there  spoken  of 
would  include  any  title  by  lease,  licence,  or  gift  from  the  plaintiff 
(Bro.  Abr.  tit.  De  son  tort  demesne,  41) ;  or  any  subdemise  to  the 
defendant  (Id.  pi.  53).    The  answer  therefore  to  this  objection  appears 


508  PRINCIPLES   OP   GENERAL   APPLICATION  (Part  3  | 

to  be  that  the  defendants  in  this  case  claim  no  subinterest,  nor  any  oth-  | 

er  interest  of  any  kind,  in  the  goods  taken.     For  that  the  exception  | 

appHes  only  to  the  case  of  title  or  property  in  the  goods,  independently 
of  any  right  conferred  by  the  act  of  seizure,  we  have  already  stated 
to  be  our  opinion,  to  which  we  refer.  The  next  exception  is  where  the 
defendant  justifies  under  any  authority  or  power,  mediately  or  im- 
mediately derived  from  the  plaintiff;  in  which  case  it  is  said  that, 
although  no  interest  is  claimed,  the  plaintiff  ought  to  answer  it,  and 
shall  not  reply  generally  de  injuria  sua  propria.  It  would  not  have 
been  necessary  to  have  adverted  to  this  exception,  as  the  proceedings 
on  the  part  of  the  defendants  are  manifestly  not  under  any  authority 
from  the  plaintiff,  but  directly  against  him,  if  Lord  Coke  had  not 
proceeded  to  add  "the  same  law  of  an  authority  given  by  the  law, 
as  to  view  waste."  But  the  meaning  of  this  distinction  is  explained  by 
Lord  Holt  in  the  case  of  Chauncey  v.  Winn,  12  Mod.  582,  who  says, 
''the  case  of  entering  to  see  waste  is  upon  a  special  reason,  for  sup- 
pose the  lessor  were  seised  in  fee,  such  seisin  in  fee  would  be  involved 
in  the  issue."  That  the  dictum  of  Lord  Coke  cannot  be  intended  of 
justification  under  all  authorities  in  law  generally  is  abundantly  clear 
from  the  instances  already  adverted  to  of  justification  under  process 
of  law  against  the  person  and  against  the  goods  of  the  plaintiff;  so 
also  of  justification  by  peace  officers  arresting  upon  breach  of  the 
peace  and  the  like;  so  also  in  the  case  of  justification  under  a  stat- 
ute (see  Chauncey  v.  Winn,  supra) ;  in  all  which  cases  the  general 
traverse  is  invariably  replied  to  such  pleas,  where  no  matter  of  rec- 
ord forms  part  of  it.  If  so,  why  may  it  not  equally  be  replied  where 
the  justification  is  under  a  distress  for  a  poor's  rate  being  an  authority 
of  law? 

The  last  of'  the  exceptions  mentioned  in  Crogate's  Case  is  that 
the  plea  would  be  full  of  a  multiplicity  of  matter.  Whether  or  not 
this  is  a  ground  of  exception  that  applies  to  the  present  case  must  de- 
pend upon  the  meaning  of  the  word  "multiplicity"  in  the  resolution. 
If  it  intends  that  separate  and  distinct  facts  constituting  altogether 
one  defence  cannot  be  included  in  the  general  replication,  what  be- 
comes of  the  rule  in  Crogate's  Case  altogether  ?  Why  did  the  discus- 
sion in  Crogate's  Case  take  place?  And  why  were  the  four  resolu- 
tions made,  when  the  single  objection  that  the  plea  included  more  than 
one  separate  fact  would  have  been  sufficient  to  have  determined 
against  the  general  traverse?  How  is  thi&  interpretation  reconcileable 
with  the  various  instances  in  which  this  general  form  of  replication 
is  confessedly  held  good,  such  as  the  justification  under  process  is- 
suing out  of  a  court  not  of  record?  Where  facts  are  stated  in  the 
plea  mixed  up  with  matters  of  record,  or  with  the  claim  of  interest, 
or  under  the  authority  of  the  plaintiff,  it  has  always  been  allowed  that 
the  plaintiff  might  admit  the  fact  which  falls  within  the  description  of 
such  exceptions,  and  traverse  the  remainder  of  the  allegations  of  the 
plea  by  uniting  the  traverse  by  the  words  "absque  residuo  causa." 


Ch.  2)  CONCERNING  FORM  509 

How  could  this  practice  of  pleading  be  applied  to  the  present  case, 
when  none  of  the  facts  alleged  fall  within  the  exceptions,  and  all  the 
facts  are  of  the  same  nature?  It  follows,  therefore,  that  such  cannot 
be  the  meaning  of  the  word  "multiplicity,"  and  consequently  that  the 
resolution  does  not  apply  to  this  case.  .And  such  appears  clearly  to 
have  been  the  opinion  of  the  court  of  King's  Bench  in  two  modern 
cases,  Robinson  v,  Raley,  1  Burr.  R.  316,  and  O'Brien  v.  Saxon,  2 
B.  &  Cr.  908. 

Upon  the  whole,  we  think  this  case  falls  within  the  general  rule 
laid  down  in  Crogate's  Case,  and  that  it  is  not  touched  by  any  of  the 
exceptions  there  adverted  to,  and  consequently  that  the  judgment  of 
the  court  below  must  be  affirmed. 

Judgment  affirmed. ^^ 


SECTION  8.— PLEA  AND  DEMURRER 


RICKERT  V.  SNYDER. 

(Supreme  Court  of  New  York,  3830.     5  Wend.  104.) 

]\Iotion  to  strike  out  demurrers.  The  action  in  this  case  was 
brought  to  recover  for  the  breach  of  the  covenants  of  seisin  and  war- 
ranty contained  in  a  deed  of  land  executed  by  the  defendant  to  the 
plaintiff.  The  declaration  contains  four  counts,  in  each  of  the  three 
last  of  which  four  breaches  are  assigned.  The  defendant  pleaded  non 
est  factum  to  each  count,  and  subjoined  to  his  plea  a  notice  that  on 
the  trial  of  the  cause  he  would  prove  that  at  the  time  of  the  ensealing 
and  delivery  of  the  said  several  indentures  he  was  seised,  etc.,  and 
that  he  had  good  right,  etc.,  to  grant,  etc.,  and  that  he  had  kept  and 
performed  his  covenants,  etc.,  and  that  the  plaintiff  from  the  time  of 
the  ensealing  and  delivery,  etc.,  had  peaceably  and  quietly  held  and  en- 
joyed, etc.  The  defendant  also  demurred  to  the  fourth  breach  contain- 
ed in  the  three  last  counts  of  the  declaration.    The  plaintiff  proceeded 

33  See  note  to  Crogate's  Case  in  1  Smith's  Leading  Cases  (5tli  Am.  Ed.)  201 
et  seq. 

"Tlie  general  replication  de  injui-ia  sua  propria  absque  tali  causa,  is  bad 
where  the  defendant  justifies  or  insists  on  a  right,  and  is  good  only  where  he 
pleads  matter  of  excuse."  Sutherland,  J.,  in  Coburn  v.  Hopkins,  4  Wend. 
(N.  Y.)  577,  578  (1830). 

"We  are  aware  of  numerous  decisions  in  this  counti-j-  to  the  effect  that  the 
replication  de  injuria  is  only  a  good  replication  where  the  plea  sets  up  matter 
of  excuse,  and  is  not  good  where  the  plea  sets  "up  matter  of  ju.stification, 
though  the  justification  be  "under  process  from  a  court  not  of  record,  or  rest 
upon  some  authority  of  law  other  than  a  judgment  of  a  court.  Such  are  the 
decisions  of  the  Supreme  Court  of  New  York,  and  they  proceed  upon  the  sup- 
posed doctrine  of  the  resoUitions  in  Crogate's  Case.  But  an  examination  of 
that  case  will  show  that  the  doctrine  is  not  supported  to  the  extent  laid  down 
in  the  New  York  decisions."  Field,  J.,  in  Erskiue  v.  Hohnbach,  14  Wall.  613, 
618,  20  L.  Ed.  745  (1871). 


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to  trial  on  the  issue  of  fact  before  the  rule  to  join  in  demurrer  expired, 
and  obtained  a  verdict  for  $281.69,  and  now  moved  to  strike  out  the 
demurrers. 

By  the  Court,  Savagi:,  C.  J.  There  cannot  be  a  demurrer  and  a 
plea  to  the  same  part  of  a  declaration.  1  Chitty,  230.  The  plea  of 
non  est  factum,  with  the  notice  of  special  matter  set  up  in  this  case, 
is  equivalent  to  a  special  plea  to  each  breach,  and  having  pleaded  to 
the  whole  declaration,  the  defendant  cannot  also  demur.  The  motion 
is  granted  with  costs.^* 


SECTION  9.— ARGUMENTATIVENESS 


BENHAM  v.  EARL  OF  MORNINGTON. 

(Court  of  Common  Pleas,  1846.     3  Mau.  Gr.  &  S.  133.) 

Debt,  on  a  bond,  bearing  date  the  23d  of  August,  1833,  in  the  penal 
sum  of  £800. 

Plea,  that  the  supposed  writing  obligatory  in  the  declaration  men- 
tioned, was  made  and  executed  by  the  defendant  as  therein  mentioned, 
in  parts  beyond  the  seas,  to  wit,  at  Calais,  in  the  kingdom  of  France, 
where  the  defendant  was  then  resident  and  domiciled,  and  not  else- 
where ;    that  the  said  writing  obligatory  in  the  declaration  mentioned. 


3  4  Gayle  v.  Smith,  Minor  (Ala.)  83  (1822) ;  Hair  v.  Weaver,  1  Blackf.  (Ind.) 
77  (1820);  Edbrooke  v.  Cooper,  79  111.  .582  (1875),  senible;  Cicotte  v.  Wayne 
County,  44  Mich.  173,  6  N.  W.  236  (1880),  semble;  Gwin  v.  Mandeville,  17  Miss. 
(9  Smedes  &  M.)  -320  (1&18),  semble ;  Truesdale  v.  Stxaw,  58  N.  H.  207  (1877) ; 
Reid  V.  Providence  Journal  Co.,  20  E.  I.  120,  37  Atl.  637  (1897),  semble;  Bac. 
Abr.  Pleas.,  K.,  1,  3 ;    N.  1.    Accord. 

The  same  rule  applies  to  replications.  liiley  v.  Ilarkness,  2  Blackf.  (Tnd.) 
84  (1826);  Chesapeake,  etc.,  Co.  v.  American  Exchange  Bank,  92  Va.  495,  23  S. 
E.  935,  44  L.  R.  A.  449  (1896). 

In  some  jurisdictions  demurrer  and  plea  to  the  same  count  a:re  permitted 
by  statute.  See  Hobson  v.  Satterlee,  163  Mass.  402.  403,  40  N.  E.  189  (1895) ; 
Chesapeake,  etc.,  Co.  v.  American  Exchange  Bank,  92  Va.  495,  23  S.  E.  935,  44 
L.  R.  A.  449  (1896). 

In  Haiton  v.  Jeffreys,  10  Mod.  280  (1714)  defendant  moved  the  court  for 
leave  to  plead  a  plea  and  demur  to  the  declaration  at  the  same  time.  The 
court  in  denying  the  motion  said :  "The  words  of  the  act  of  parliament  are 
'that  it  shall  be  lawful  to  plead  as  many  several  matters,'  etc.  Now  a  demur- 
rer is  so  far  from  being  a  plea  that  it  is  an  excuse  for  not  pleading.  Here 
you  plead,  and  at  the  same  time  pray  that  you  may  not  plead.  The  word 
'matter'  imports  a  possibility  that  the  other  party  may  demur  to  it;  but 
there  can  be  no  demurrer  upon  a  deumrrer.  This  was  never  attempted  be- 
fore." 

Defendant  may  demur  to  one  count  and  plead  to  others.  Patterson  v.  Wil- 
kinson, 55  Me.  42,  92  Am.  Dec.  568  (1867);  Harwood  v.  Tompkins,  24  N.  J. 
Law,  425  (1854).  A  party  may  demur  to  a  part  of  a  declaration  or  count  and 
plead  to  the  residue,  if  the  matter  be  severable.  Nave  v.  Berry,  22  Ala.  382 
(1853),  semble;  Wyant  v.  Smith,  5  Blackf.  (Ind.)  293  (1840);  Edes  v.  Garey, 
46  Md.  24  (1877).  Accord.  Pettibone  v.  Stevens,  6  Hill  (N.  Y.)  258  (1843). 
Contra. 


Ch.  2)  CONCERNING  FORM  511 

was  not  taken,  received,  made,  or  passed  by  any  public  officer  or  offi- 
cers of  the  said  kingdom  of  France,  authorized  by  the  laws  of  that 
kingdom  so  to  do,  nor  was  the  same  writing  written  throughout  by  the 
hand  of  the  defendant;  that,  although  the  defendant  signed  the  said 
writing  with  his  own  hand,  yet  the  defendant  did  not,  in  any  part  of 
the  said  writing,  write  with  his  proper  hand  the  formula  or  acknowl- 
edgment styled  in  the  French  tongue  a  "bon,"  or  "approuve,"  bearing 
in  words  at  length  the  debt  or  sum  of  money  purporting  to  be  secured 
or  acknowledged  by  the  said  writing,  nor  was  the  defendant,  at  the 
time  of  the  making  of  the  supposed  writing  obligatory,  a  merchant  or 
tradesman,  artisan,  husbandman,  ploughman,  vine  cultivator,  labouring 
man,  or  servant;  and  that,  by  reason  of  the  premises,  the  said  sup- 
posed writing  obligatory,  by  the  laws  of  the  said  kingdom  of  France, 
never  was  nor  is  obligatory  or  binding  on  the  defendant,  but  always 
was  and  is  of  no  force,  effect,  or  validity — verification. 

Special  demurrer,  assigning  for  causes  that  the  plea  did  not  state 
facts  with  distinctness  and  certainty,  so  that  the  court  could  perceive 
that  the  writing  obligatory  was  void  according  to  the  law  of  France  at 
the  time  it  was  executed,  that  the  plea  merely  stated,  as  an  inference 
from  certain  preceding  matters,  that  the  writing  obligatory  never  was 
binding,  that  the  plea  ought  to  have  averred,  in  terms,  what  was  the 
existing  law  in  France  at  the  time  the  writing  obligatory  was  executed, 
and  then,  by  proper  averments,  to  have  shown  facts  which  brought  the 
writing  obligatory  within  that  law.     *     *     *  ^^ 

TiNDAL,  C,  J.  It  appears  to  me  that  this  plea  is  bad  for  one  of  the 
causes  assigned,  viz.  that  it  is  argumentative  and  inferential  only ; 
whereas  "every  plea  must  be  direct,  and  not  by  way  of  argument  or 
rehearsal,"  as  is  laid  down  in  Co.  Lit.  303a.  It  is  perfectly  clear,  that, 
but  for  the  words  at  the  end — "by  reason  of  the  premises,  the  said 
supposed  writing  obligatory,  by  the  laws  of  the  said  kingdom  of 
France,  never  was,  nor  is,  obligatory  or  binding  on  the  defendant,  but 
always  was,  and  is,  of  no  force,  effect,  or  validity" — the  plea  would  be 
no  answer  to  the  action.  There  is  no  direct  affirmance  of  what  the 
law  of  France  is,  or  of  any  state  of  facts  to  bring  this  case  within 
the  operation  of  that  law.  I  think  the  plaintiff  was  entitled  to  a  dis- 
tinct statement  of  the  law  and  of  the  facts,  in  order  that  he  might  take 
the  opinion  of  the  court  as  to  whether  or  not  they  amounted  to  a 
legal  defence.  If  this  had  been  a  question  of  evidence,  instead  of 
pleading,  the  witness  would  not  have  been  allowed  to  state,  negatively, 
this  or  that  is  not  in  compliance  with  the  law  of  France;  but  he  would 
have  been  required  to  show  affirmatively,  from  his  own-  experience, 
or  from  knowledge  derived  from  some  recognised  code  or  book,  what 
the  law  is.  The  entire  plea,  after  the  introductory  statement  of  the 
defendant's  domicil,  consists  of  negative  propositions  only.     With  re- 

3  5  Part  of  the  statement  of  causes  of  special  demurrer  is  omitted.     The  eou- 
curring  opinions  of  Coltman  and  Creswell,  JJ.,  are  also  omitted. 


512 


PRINCirLES   OF   GENERAL   APPLICATION 


(Part  3 


spect  to  the  allegation  that  the  defendant  was  not  a  merchant  or  trades- 
man, etc.,  how  do  we  know  that  there  are  not  other  classes  embraced 
by  the  exception  that  are  not  noticed  by  the  plea,  and  to  one  of  which 
the  defendant  may  belong?  I  think  the  plea  is  clearly  argumentative 
and  bad.  As  to  MXeod  v.  Schultze,  it  may  be  observed  that  a  case  in 
which  either  party  is  recommended  to  withdraw  his  plea,  or  demurrer, 
and  amend,  cannot  be  considered  a  very  strong  authority ;  besides, 
the  plea  there  consisted  entirely  of  affirmative  matter,  and  therefore 
stands  clear  of  one  of  the  difficulties  that  this  plea  presents.  In  Wood- 
ham  V.  Edwardes,  the  objection  was  not  taken,  the  plainti'ff  having 
pleaded  over.  Upon  the  whole,  I  think  the  plaintiff  is  entitled  to  judg- 
ment on  this  plea. 

Judgment  for  the  plaintiff. 


BEATTY  V.  PARSONS. 
(Superior  Court  of  Delaware,  1910.     2  Boyce,  134,  78  Atl.  302.) 

Pdnnewill,  C.  J.^^  In  the  above-stated  case  the  plaintiff  in  his 
narr.  alleges  that  the  title  to  the  property  in  question  is  in  himself. 

To  the  declaration  of  the  plaintiff,  the  defendant  filed  certain  pleas, 
one  of  which  is  as  follows  : 

"And  the  said  Elisha  S.  Parsons  comes  and  further  defends  the 
wrong  and  injury  when,  etc.,  and  says  that  the  said  plaintiff  ought  not 
to  have  and  maintain  his  action  aforesaid  against  him,  because  he  says 
that  the  property  of  the  goods  and  chattels  in  the  declaration  of  the  said 
plaintiff  mentioned,  at  the  said  time,  etc.,  was  in  one  Harry  C.  Rams- 
berger  and  not  in  the  said  plaintiff  as  by  the  declaration  aforesaid  is 
supposed.     And  this  he  is  ready  to  verify,  etc." 

To  said  plea  the  plaintiif  replied  as  follows : 

"And  the  said  plaintiff,  as  to  the  third  plea  of  the  said  defendant 
above  pleaded  saith :  That  he  by  anything  in  the  said  third  plea  alleged 
from  having  and  maintaining  his  action  as  aforesaid  to  be  precluded 
ought  not,  because  he  says  that  the  property  of  the  goods  and  chattels 
in  his  declaration  at  the  time  of  taking  the  said  goods  and  chattels, 
was  in  him,  the  said  plaintiff,  as  he,  by  his  declaration  aforesaid  there- 
of hath  alleged,  and  this  he  prays  may  be  inquired  of  by  the  country." 

To  this  replication  the  defendant  demurred,  stating  and  showing 
"the  following  cause  of  demurrer,  that  is  to  say,  that  said  replication 
neither  traverses,  confesses  or  avoids,  nor  otherwise  answers  the  plea 
of  said  defendant  of  property  of  the  goods  and  chattels  in  the  declara- 
tion of  the  said  plaintiff  mentioned  in  one  Harry  C.  Ramsberger." 

The  question  raised  by  the  demurrer,  therefore,  is  the  sufficiency  of 
the  plaintiff's  replication. 

36  A  portion  of  the  opinion  is  omitted. 


Ch.  2)  CONCERNING  FORM  513 

In  volume  2  of  Harris'  Modern  Entries,  97,  is  found  the  following 
form  of  a  plea  of  property  in  a  stranger,  in  an  action  of  replevin : 

"Because  he  saith  that  the  property  of  the  aforesaid  three  cows  in 
the  declaration  aforesaid  specified,  at  the  said  time,  when,  etc.,  was  in 
one  C.  D.  and  not  in  the  said  P.  as  by  the  declaration  aforesaid  is  sup- 
posed ;  and  this,  etc." 

In  a  note  following  said  plea,  and  also  a  plea  of  property  in  the  de- 
fendant, it  is  said : 

"Although  the  last  two  pleas  are  usually  pleaded  together,  the  issue 
on  them  both  is  one  and  the  same;  the  only  question  being  whether 
the  goods  are  the  property  of  the  plaintiff,  since,  if  they  are  not,  he 
.can  have  no  right  to  disturb  the  possession  of  the  defendant.  These 
pleas  are  special  traverses.  1  Williams'  Saunders,  22,  note  2.  In  this 
case  the  fact  alleged  in  the  declaration,  that  the  goods  are  those  of 
the  plaintiff,  is  'a  material  fact  which  will  decide  the  cause  one  way 
or  the  other,'  and  is  therefore  well  traversed.  *  *  *  The  issue  is 
therefore  to  be  joined  on  the  traverse  of  the  plaintiff's  property,  and 
the  only  proper  replication  in  both  cases  is  that  given  hereafter  under 
the  title  'Replication,'  which  was  put  in  by  the  late  John  Thompson 
Mason,  Esq.,  in  Glasgow  v.  Dorsey,  the  record  of  which  case  is  in  2 
Harris'  Entries,  246,  etc.  See  to  the  same  effect  Cullum  v.  Bevans,  6 
Har.  &  J.  (Aid.)  472.  Mr.  Harris  has  given,  on  page  471,  a  form  of 
replication  irreconcilable  to  the  rules  of  pleading,  being  a  traverse  of 
the  inducement  of  the  special  traverse,  that  the  goods  are  the  property 
of  the  defendant,  and  a  reiteration  of  the  allegation  that  they  are  that 
of  the  plaintiff ;  but  the  inducement  cannot  be  traversed,  and  the  onus 
probandi  by  that  means  changed,  for  such  is  its  eft'ect.  The  issue  even 
then  is  on  the  affirmative  of  the  reiterated  allegation,  and  the  nega- 
tive of  the  original  traverse.  The  form  in  Harris  is  also  bad  for  du- 
plicity, since  it  presents  two  issues,  viz. :  Whether  the  goods  are  those 
of  the  plaintiff,  or  whether  they  are  those  of  the  defendant.  There 
seems  to  be  no  sound  reason  why  the  inducement  should  not  be  dis- 
missed from  practice,  and  the  same  issue  attained  in  a  shorter  mode  by 
a  common  traverse  of  the  fact  of  the  plaintift"'s  property."  The  fore- 
going note  is  by  Hugh  Davey  Evans,  Esq.,  who  newly  arranged  the 
compilation  of  Harris'  Entries,  making  additions  and  improvements 
thereto. 

In  volume  2  of  Harris'  Entries,  239,  is  found  the  replication  which  is 
stated  in  said  note  to  be  the  only  proper  replication  in  an  action  of 
replevin  to  a  plea  of  property  in  defendant,  or  property  in  a  stranger, 
and  it  is  in  the  following  language: 

"And  the  said  plaintiff,  by  his  attorney  aforesaid,  as  to  the  second 
plea  of  the  said  defendant,  saith  that  he,  by  anything  in  the  said  sec- 
ond plea  alleged,  from  having  and  maintaining  his  action  aforesaid  to 
be  precluded  ought  not,  because  he  saith  that  the  property  of  the  said 
negro  slaves  called  James  and  Harry  (or  the  goods  and  chattels  afore- 


514  PRINCirLES   OF   GENERAL  APPLICATION  (Part  3 

said),  at  the  time  of  taking  the  said  negroes  (or  goods  and  chattels), 
was  in  him,  the  said  plaintiff,  as  he  by  his  declaration  aforesaid  there- 
of hath  alleged,  and  this  he  prays  may  be  inquired  of  by  the  country." 

It  will  be  noted  that  the  plea  filed  in  the  present  case  is  practically 
identical  with  the  one  above  quoted  from  Harris'  Entries,  and  that  the 
replication  filed  here  is  similar  to  that  which  is  approved  in  Harris' 
Entries,  and  declared  in  the  said  note  to  be  the  only  proper  replication 
to  such  a  plea.  The  contention  of  the  defendant  is  that  the  plaintiff 
should  have  traversed  the  plea,  not  in  the  common  form,  but  by  a 
special  traverse. 

Mr.  Stephen  in  his  work  on  Pleading  (Tyler's  Edition  1871)  184,  188, 
189,  197,  199,  says: 

The  affirmative  part  of  a  special  traverse  is  called  its  inducement ; 
the  negative  is  called  the  absque  hoc.  *  *  *  The  different  parts 
and  properties  here  noticed  are  all  essential  to  a  special  traverse,  which 
must  always  consist  of  an  inducement,  a  denial,  and  a  verification. 
*     *     * 

"The  general  design  of  a  special  traverse,  as  distinguished  from  a 
common  one,  is  to  explain  or  qualify  the  denial,  instead  of  putting  it 
in  the  direct  and  absolute  form.     *     *     * 

"Again,  it  is  a  rule  with  respect  to  special  traverse  that  the  opposite 
party  has  no  right  to  traverse  the  inducement,  or  *  *  *  that  there 
must  be  no  traverse  upon  a  traverse.     *     *     * 

"As  the  inducement  of  a  special  traverse,  when  the  denial  under  the 
absque  hoc  is  sufficient,  can  neither  be  traversed,  nor  confessed  and 
avoided,  it  follows  that  there  is  in  that  case  no  manner  of  pleading  to 
the  inducement. 

"The  only  way,  therefore,  of  answering  a  good  special  traverse,  is 
to  plead  to  the  absque  hoc,  which  is  done  by  tendering  issue  on  such 
denial ;  *  *  *  "  that  is  "to  tender  issue  upon  it,  with  a  repetition 
of  the  allegation  traversed." 

We  assume  that  the  correctness  of  these  general  principles  will  not 
be  disputed,  and  will  endeavor  to  apply  them  to  the  present  case. 

The  special  traverse  may  be  employed  in  a  plea  as  well  as  in  a 
replication,  and  that  is  exactly  what  we  think  the  defendant  has  done 
in  this  case.  That  which  he  insists  the  plaintiff  should  have  done  in 
his  replication  he  has  done  in  his  plea.  It  is  averred  in  such  plea  that 
the  property  was  in  a  stranger,  and  that  part  of  a  special  traverse  is 
called  the  inducement,  and  only  indirectly,  or  argumentatively,  denies 
the  allegation  in  the  declaration  that  the  property  was  in  the  plaintiff. 
The  plea  also  avers  that  the  property  was  not  in  the  plaintiff,  and  that 
part  of  the  special  traverse  is  called  the  absque  hoc.  It  is  a  direct 
denial  that  the  property  was  in  the  plaintiff,  which  is  the  only  thing 
that  could  be  traversed  by  the  plea. 

To  constitute  a  special  traverse  by  the  absque  hoc  it  is  not  necessary 
that  the  words  "without  this"  should  be  employed.     It  is  the  same  if 


Ch.  2)  CONCERNING  FORM  515 

the  words  "and  not"  are  used.  The  defendant's  plea  being  a  special 
traverse,  and  by  the  absque  hoc,  what  should  the  plaintiff  in  his  replica- 
tion do?  That  is  the  question  we  have  to  decide.  Certainly  he  should 
not,  and  could  not,  traverse  the  inducement  of  the  plea,  which  is  that 
the  property  was  in  a  stranger,  to  wit,  one  Harry  C.  Ramsberger.  He 
was  compelled  to  take  issue  on  the  denial  in  the  plea  that  the  property 
was  in  the  plaintiff.  That  is  what  the  plaintiff  has  done  in  his  replica- 
tion, following  exactly  the  form  set  out  in  Harris'  Entries,  and  above 
quoted. 

We  are  of  the  opinion  that  the  replication  is  good  and  sufficient  in  law, 
and  think  no  authority  can  be  found  to  the  contrary.     *     *     *  37 


SECTION  10.— RECITALS 


BROWN  v.  THURLOW. 

(Court  of  Exchequer,  1,846.     16  Mees.  &  W.  3G.) 

Case  for  slander.  Declaration  stated,  for  that  whereas  the  defend- 
ant, contriving,  etc.,  heretofore,  to  wit,  on,  etc.,  in  a  certain  discourse 
which  the  defendant  then  had  of  and  concerning  the  plaintiff,  in  the 
presence  and  hearing  of  divers  good  and  worthy  subjects  of  the  Queen, 
falsely  and  maliciously  spoke' and  published  of  and  concerning  the 
plaintiff  the  false,  scandalous,  and  malicious,  and  defamatory  words 
following:  "Bill  Brown  (meaning  the  plaintiff',)  you  are  a  sheep-steal- 
er.  I  can  prove  you  are  a  sheep-stealer  at  any  day  or  one  time."  The 
declaration  then  alleged  special  damage  to  the  plaintiff,  by  means  of 
the  premises,  in  his  trade  and  business  of  a  cattle  dealer. 

Special  demurrer,  assigning  for  causes  that  the  defendant  is  not  by 
the  said  declaration  positively  charged  with  having  committed  the 
grievances  in  the  declaration  mentioned,  but  it  is  therein  alleged  by 
way  of  recital  only  that  the  defendant  has  committed  the  said  griev- 
ances, and  not  directly  and  positively,  as  it  ought  to  have  been;  and 
that  nothing  is  directly  or  positively  affirmed  or  charged  in  the  said 
declaration ;  and  also  that  it  does  not  appear  by  the  said  declaration 
that  the  words,  "Bill  Brown,  (meaning  the  plaintiff,)  you  are  a  sheep- 

37  If  the  inducement  is  insufficient  in  substance,  the  entire  plea  is  bad  on 
genei-al  demurrer.  Fox  v.  Nathans,  .32  Conn.  34S  (1SG5) ;  People  v.  Pullman, 
etc.,  Co.,  175  111.  125,  51  N.  E.  664,  64  L.  R.  A.  366  (1808) ;  Allen  v.'  Stevens,  29 
N.  J.  Law,  509  (1.861).  If  the  inducement,  rhoush  sufficient  in  substance,  be 
other  than  an  indirect  or  arj^uimentative  denial,  the  plea  is  liad  on  special 
demurrer.  Finley  v.  Woodruff,  8  Ark.  32S  (185.3),  semble ;  Hubbard  v.  Mutual 
Reserve  Fund  Life  Ass'n  (C.  C.)  SO  Fed.  6S1  (1897),  semble ;  Stephen,  Pleading 
(Williston's  Ed.)  *212  et  seq. 


516 


PEINCIPLES   OF   GENERAL  APrLICATION 


(Part  3 


stealer,"  etc.,  were  spoken  or  published  of  or  to  the  plaintiff.    Joinder 
in  demurrer.     *     *     *  ^s 

Needham,  in  support  of  the  demurrer. — It  is  a  general  rule  of  plead- 
ing that  every  material  averment  must  be  alleged  with  certainty :  thus 
matter  of  inducement  may  be  placed  under  a  "whereas,"  but  the  posi- 
tive charge  must  not.  In  Bac.  Abr.  tit.  Pleas  and  Pleading,  B.  4,  it  is 
said,  "the  declaration  must  contain  such  certain  affirmation  that  it  may 
be  traversed ;  for  if  there  be  no  certain  affirmation  to  make  the  declara- 
tion itself  traversable,  it  will  not  be  cured  after  a  verdict,  because  it 
is  a  defect  in  substance ;  as  if  the  declaration  be  'quod  cum  the  defend- 
ant assaulted  him,'  and  the  defendant  pleads  not  guilty,  here  is  nothing 
put  in  issue,  for  the  pleadings  have  affirmed  nothing,  and  though  the 
defendant  is  found  guilty,  yet  cannot  the  plaintiff  have  judgment,  be- 
cause nothing  is  positively  affirmed."  In  Comyns's  Digest,  tit.  Pleader 
(C.  50),  it  is  said,  generally,  that  "the  plaintiff  in  his  declaration  ought 
to  aver  all  that  is  necessary  for  the  maintenance  of  his  action."  Sub- 
sequent editors  have  added,  by  way  of  illustration,  the  case  of  Smith 
V.  Reynolds,  Andrews,  21,  thus  stated:  "If  a  declaration  in  assault 
and  battery  begins  with  'quod  cum,'  it  is  bad  for  want  of  averment." 
Though  the  instances  quoted  in  both  abridgments  are  in  trespass  only, 
the  same  reasoning  applies  to  other  actions,  including  actions  on  the 
case;  for  though  the  precedents  in  those  forms  of  action  begin  with 
'quod  cum,'  by  way  of  recital,  the  material  part,  the  grievance,  or 
gravamen  of  the  charge,  is  invariably  alleged  in  positive  terms.  Nor 
is  Ring  V.  Roxbrough,  2  Cr.  &  J.  418,  2  Tyr.  468,  to  the  contrary,  where 
it  was  held,  in  assumpsit,  that  an  averment  of  promise  under  a  'where- 
as' is  good  on  general  demurrer,  for  it  is  included  in  the  subsequent 
sentence,  which  alleges  by  way  of  positive  affirmation,  that  the  defend- 
ant has  disregarded  his  promises,  and  has  not  paid  the  money  due. 
Bayley,  B.,  said :  "There  is  no  special  cause  of  demurrer  on  this 
ground,  and  it  cannot  be  matter  of  substance.  But  in  the  common 
form  of  a  declaration  on  a  bond  all  the  contract  is  stated  under  a 
whereas."  Lord  Lyndhurst,  C.  B. :  "It  states  shortly,  whereas  de- 
fendant became  bound,  yet  he  did  not  pay  :"  2  Cr.  &  J.  418.  [Alder- 
son,  B.  This  question  could  only  have  been  raised  on  special  de- 
murrer. We  have  no  doubt  of  the  rule  in  trespass,  or  of  the  general 
principle  of  pleading,  but  if  the  course  of  precedents  in  actions  on 
the  case  is  the  other  way,  we  should  be  careful  not  to  disturb  them.] 
What  in  this  action  corresponds  to  the  breach  in  assumpsit,  is  the 
actual  charge,  or  gravamen.  From  the  precedents  of  declarations  in 
case  for  keeping  mischievous  animals,  public  nuisances,  malicious  ar- 
rests and  prosecutions,  slander,  verbal  and  written,  enticing  away  ap- 
prentices, negligence,  escapes,  etc.,  it  appears  that,  though  matter 
purely  inducement  is  laid  under  the  recital  quod  cum,  the  grievance  is 
invariably  laid  in  direct  terms,  e.  g.,  under  "yet."     It  is  true,  the 


38  A  portion  of  the  stateuieut  of  facts  is  omitted. 


Ch.  2)  CONCERNING   FORM  517 

precedents  in  actions  for  criminal  conversation,  and  in  some  actions  for 
deceit,  allege  the  whole  by  way  of  recital,  under  the  "quod  cum," 
without  any  change  of  phrase,  except  "and  thereby ;"  but,  as  special 
damage  is  the  gist  of  these  actions,  those  words  may  effect  a  sufficient 
interruption  of  the  previous  recital.  [AldERSON,  B.  I  do  not  know 
that  it  has  ever  been  held  on  special  demurrer,  that,  in  an  action  on 
the  case  for  criminal  conversation,  it  would  suffice  to  lay  the  charge 
under  a  "whereas."]      *     *     * 

Peacock,  contra. — Whatever  the  rule  may  be  in  trespass  for  a  direct 
injury,  it  is  enough,  in  an  action  on  the  case  for  words,  to  state  dis- 
tinctly that  they  were  spoken  by  the  defendant.  That  is  here  done ; 
for  the  recital  under  the  "quod  cum"  is  confined  to  the  contriving,  etc., 
•by  the  defendant.  In  actions  on  the  case  for  seduction  and  criminal 
conversation,  the  whole  charge  is  laid  under  it.  Serjt.  Stephen,  in  his 
work  on  Pleading,  c.  II,  §  5,  rule  5,  after  stating  that  pleadings  must 
not  be  by  way  of  recital,  but  must  be  positive  in  their  form,  adduces 
as  an  example  of  this  kind  of  fault  the  use  of  "for  that  whereas"  in 
trespass  for  assault,  instead  of  "for  that,"  but  adds,  "it  will  be  ob- 
served, however,  that,  in  trespass  on  the  case,  the  'whereas'  is  unob- 
jectionable, being  used  only  as  introductory  to  some  subsequent  posi- 
tive allegation."  [AldERSON,  B.  Here  is  no  subsequent  positive  alle- 
gation to  which  the  matter  under  the  "whereas"  is  an  introduction. 
Parke,  B.  Does  not  the  same  principle  apply  in  all  cases  where  a 
direct  averment  is  necessary?  Here  there  is  no  direct  allegation  that 
the  defendant  spoke  the  words,  except  in  an  inverted  manner :  Sher- 
land  V.  Eaton,  2  Bulstrode,  214.  "Quod  cum"  is  not  direct  affirmation. 
Ring  V.  Roxbrough  was  in  assumpsit,  following  the  precedent  given 
in  the  rules  prepared  by  the  judges.^''  Parke,  B.  The  breach  in  that 
case  contained  a  direct  allegation  that,  disregarding  his  promise,  he 
had  not  paid.]  Mr.  Baron  Bayley  seemed  to  think  the  declaration 
would  be  good  on  special  demurrer.  [RoLFE,  B.  There  is  nothing 
recondite  in  the  matter.    This  plaintiff  complains,  for  that  whereas  the 

3  9  "The  second  or  common  count  for  money  had  and  received  is  good  in  tliis 
case.  It  is  objected  to  because  the  consideration  for  the  promise  and  tlie 
promise  itself  is  stated  after  a  whereas.  It  is  unquestionably  true  that  it  is 
a  general  rule  of  pleading  that  whatever  facts  are  necessary  to  constitute  the 
cause  of  action  should  be  directly  and  positively  stated  in  the  declaration, 
and  not  by  way  of  recital ;  but,  though  this  rule  be  apparently  violated,  it 
has  been  expressly  decided  by  the  court  that  if  in  assumpsit  in  this  common 
indebitatus  count  the  promise  is  stated  after  a  whereas,  though  the  promise 
is  the  very  gist  of  the  action,  yet  such  a  count  so  framed,  will  be  held  good 
on  denuu-rer.  See  Burton  &  Co.  v.  Handsford,  10  W.  Va.  470,  27  Am.  Rep. 
571  (1S77). 

"This  conclusion  was  reached  because  this  was. the  manner  in  which  the 
judges  of  England  had  prescribed  for  such  a  count  in  an  action  of  assumpsit; 
and  they  decided  that  such  a  mode  of  stating  the  promise  in  such  a  count  was 
good,  independently  of  their  having  prescribed  this  as  its  proper  form."  Green, 
J.,  in  Sheppard  v.  Peabody  Ins.  Co.,  21  W.  Va.  36S.  377  (18S.S).  See,  also.  Up- 
per Canada  College  v.  Boulton.  2  U.  C.  C.  P.  .326,  335  (1S52) ;  Falconer  v,  Camp- 
bell, Fed.  Cas.  No.  4620,  2  McLean,  195  (1840).     Accord. 


518  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

defendant  spoke  the  words.  What  then?  Nothing  more.  In  tres- 
pass, the  mere  statement  of  the  grievance  shows  it  to  be  such;  where- 
as, in  case,  some  introductory  matter  is  required  to  show  it  a  griev- 
ance.] Trespass  hes  for  the  direct  act  of  injury,  and  case  for  the  con- 
sequential damage.  [Parkd,  B.  What  you  complain  of  must  be 
averred  directly,  and  with  certainty.  That  rule  of  pleading  cannot 
vary  in  the  different  forms  of  action.  Had  these  words  not  been  ac- 
tionable in  themselves,  the  damage  would  have  been  consequential 
only.  The  precedents  in  case  for  criminal  conversation  and  seduction 
are  comparatively  modern.  The  old  form  was  in  trespass  for  assault- 
ing and  seducing  the  wife  or  daughter,  per  quod  consortium  or  serviti- 
um  amisit.  The  "quod  cum"  is  allowed  in  case,  because  in  that  form 
of  action  recitals  generally  occur.  A  declaration  in  case  for  criminal 
conversation  might  recite  that,  whereas  A.  B.  was  wife  of  the  plaintiff, 
yet  the  defendant  seduced  her,  etc.] 

Pollock,  C.  B.  The  word  "whereas"  overrides  the  whole  of  this 
declaration,  including  the  special  damage,  as  if  it  had  been  repeated, 
and  has  not  been  exhausted.  The  gravamen  of  the  charge  is  only 
stated  by  way  of  recital  and  inducement,  nor  is  any  positive  averment 
interposed  till  the  concluding  one,  that  the  plaintiff  brings  his  suit. 
That  is  a  defect  available  to  the  defendant  on  special  demurrer.  The 
declaration  is,  therefore,  bad  on  special  demurrer. 

Parke,  B.  I  entirely  concur.  In  trespass,  the  matter  complained 
of  is  positively  averred  without  a  preceding  "whereas ;"  and  though  in 
the  action  on  the  case  recitals  generally  occur,  there  must  notwith- 
standing be  a  positive  averment  of  the  cause  of  action.  Here  the 
plaintiff  does  not  positively  or  directly  aver  the  cause  of  his  action. 
This  defect  is,  in  reason,  equally  contrary  to  the  true  principles  of 
pleading,  whether  it  occurs  in  case  or  trespass.  Had  it  appeared  by  a 
long  course  of  precedents  that  averring  the  cause  of  action  by  way 
of  recital,  and  not  positively  or  directly,  had  been  considered  sufficient, 
a  form  of  pleading  thus  established  would  have  bound  us ;  but,  in  the 
absence  of  any  such  authority,  the  clear  principle  to  the  contrary  must 
prevail.*" 

Judgment  for  the  defendant.*^ 

40  The  concurring  opinion  of  Rolfe,  B.,  is  omitted. 

41  "Ttie  second  count  is  clearly  bad  because  the  facts  are  all  recited  under  a 
whereas.  Such  defects  are  not  mere  defects  in  form,  but  in  substance,  and 
are  condemned  by  all  the  authorities.  Spiker  v.  Bohrer,  37  W.  Va.  258.  See, 
also,  11  Ency.  Diu.  Va.  &  W.  Va.  Rep.  239 ;  Id.  881 ;  15  Ency.  Dig.  Va.  &  W. 
Va.  Rep.  SOS."  Miller,  P.,  in  Gould  v.  Coal  &  Coke  Ry.  Co.,  74  W.  Va.  8,  81 
S.  E.  529  (1914). 


Ch.  2)  CONCERNING   FORM  519 

SECTION  11.— HYPOTHETICAL  PLEADING 


GRIFFITHS  V.  EYLES. 

(Court  of  Common  Pleas,  1799.     1  Bos.  &  Pul.  41.3.) 

This  was  an  action  of  debt  for  an  escape  out  of  execution,  against  the 
defendant  as  warden  of  tlie  Fleet.  Pleas:  1st,  nil  debet;  2d,  that 
the  escape  was  without  the  knowledge,  privity,  consent  or  permission 
of  the  defendant,  and  against  his  will,  and  that  before  he  knew  of  the 
escape  and  before  the  filing  of  the  bill  the  prisoner  voluntarily  and  of 
his  own  accord  returned  back  into  the  custody  of  the  defendant,  and 
continually  from  thenceforth  hitherto  hath  been  and  still  is  there  kept 
and  detained  in  execution  at  the  suit  of  the  said  plaintiff. 

[The  plaintiff  in  his  replication  joined  issue  on  the  first  plea,  and  to 
the  second  plea  put  in  what  amounted  to  a  denial.  To  the  replication 
to  the  second  plea  defendant  interposed  a  double  rejoinder  to  which 
plaintiff  demurred  specially.]  *- 

The  court,  however,  gave  the  defendant  leave  to  amend  on  payment 
of  costs,  intimating,  at  the  same  time,  that  it  must  be  done  in  such  a 
way  as  not  to  preclude  the  question  being  brought  to  issue  as  soon  as 
possible. 

Accordingly,  the  defendant  amended  his  second  plea  by  inserting  an 
allegation  "that  if  the  said  prisoner  did  at  any  time  or  times  after  the 
said  commitment,  etc.,  go  at  large  from  and  out  of  the  said  prison  of 
the  Fleet,  and  from  and  out  of  the  custody  of  him  the  said  defendant, 
he,  the  said  prisoner,  so  escaped  and  went  at  large  privately,  and  with- 
out the  knowledge,  etc.,  of  him,  the  defendant,  and  against  his  will ; 
and  that  if  any  such  escape  or  escapes  was  or  were  so  made,  the  said 
prisoner  after  such  escape  or  escapes,  and  before  the  defendant  knew 
of  such  escape  or  escapes  and  before  the  filing  of  the  bill,  voluntarily 
and  of  his  own  accord  returned  back  again  into  the  custody  of  the 
defendant,  and  continually  from  thence  forth  until  and  at  the  time  of 
the  commencement  of  the  suit  was,  and  hath  been,  and  still  is,  kept 
and  detained,"  etc. 

Upon  this  Le  Blanc  again  applied  to  the  court,  and  contended,  that 
this  plea  by  no  means  complied  with  their  injunction,  and  was  so 
framed  as  to  afford  no  probability  of  any  issue. 

Eyrk,  C.  J.  The  defendant  knows  and  is  bound  to  know  the  state 
of  his  prison,  and  whether  there  has  been  an-  involuntary  escape  and 
subsequent  return  and  safe  keeping  of  the  prisoner  since  that  time, 
or  whether  there  has  been  no  escape  at  all.     If  there  has  been  one 

42  The  statement  of  facts  is  abridged. 
Whit.C.L.Pl.— 34 


520 


PRINCIPLES   OF   GENERAL   APPLICATION 


(Part  3 


escape  and  one  return,  or  if  there  have  been  ten  escapes  and  ten  re- 
turns, and  the  defendant  thinks  fit  to  plead  them,  and  to  insist,  that 
independent  of  such  escapes  the  prisoner  has  been  kept  in  safe  custody, 
he  is  at  liberty  to  do  so.  But  he  cannot  plead  hypothetically,  that  if 
there  has  been  any  escape  there  has  also  been  a  return.  He  must  either 
stand  upon  an  averment  that  there  has  been  no  escape,  or  that  there 
have  been  one,  two  or  ten  escapes,  after  which  the  prisoner  returned, 
and  that  having  kept  him  in  custody  since  that  time,  he  is  entitled  to 
give  that  answer  to  the  plaintiff's  charge.  The  defendant  must  take 
upon  himself  to  state  the  escapes  specifically,  that  the  plaintiff  may 
have  an  opportunity  of  combating  his  assertion.  With  respect  to  the 
plaintiff's  replication,  it  never  abandoned  the  escape  laid  in  the  declara- 
tion. To  that  escape  the  defendant  pleaded  what  was  an  answer  as 
far  as  it  went;  in  reply  to  which  the  plaintiff  admitted  the  fact  of 
the  defendant's  plea,  but  added  that  he  did  not  complain  of  the  escape 
previous  to  the  return,  but  that  the  defendant  had  not  kept  the  prisoner 
in  custody  since  that  return. 

The  court  again  gave  the  defendant  leave  to  amend,  by  striking  out 
the  latter  part  of  the  rejoinder  which  had  been  demurred  to,  and  leav- 
ing the  traverse  of  the  allegation,  that  after  the  return  of  the  prisoner, 
and  after  notice  of  the  former  escape,  the  defendant  voluntarily  per- 
mitted the  prisoner  to  escape.*^ 


43  Stephen,  Pleading  (Williston's  Ed.)  *426,  427,  and  cases  cited. 
Cf.  Suit  V.  Woodhall,  116  Mass.  547.(1819). 


Accord. 


Ch.  3)  OBJECTIONS   TO   DEFECTS  521 

CHAPTER  III 
OBJECTIONS  TO  DEFECTS 


SECTION  1.— DEMURRERS 


LAMPHEAR  V.  BUCKINGHAM. 
(Supreme  Court  of  Errors  of  Connecticut,  1866.     33  Conn.  237.) 

Action  on  the  544th  section  of  the  statute  with  regard  to  corpora- 
tions (Revision  of  1866,  p.  202),.  which  provides  that,  in  case  the  Hfe 
of  any  passenger  on  a  railroad  who  is  in  the  exercise  of  reasonable 
care  shall  be  lost  by  the  neghgence  of  the  railroad  company,  the  com- 
pany shall  be  liable  to  pay  damages  not  exceeding  five  thousand  dol- 
lars and  not  less  than  one  thousand  dollars,  to  be  recovered  by  the 
executor  or  administrator  in  an  action  on  the  statute,  for  the  benefit 
of  the  husband  or  widow  and  heirs  of  the  deceased. 

The  defendants  demurred  to  the  declaration.  The  demurrer  was 
overruled.  Upon  the  hearing  in  damages,  the  court  found  that,  if  the 
law  was  so  that  plaintiff  could  not  recover  a  less  sum  in  damages  than 
one  thousand  dollars,  the  plaintiff  should  recover  that  sum ;  but  if 
the  law  was  so  that  plaintiff'  could  recover  less  than  one  thousand  dol- 
lars, then  plaintiff"  should  recover  only  nominal  damages,  which  the 
court  assessed  at  fifty  dollars.  The  question  whether  the  court  had 
the  power  to  assess  the  damages  at  a  less  sum  than  one  thousand  dol- 
lars was  reserved  for  the  advice  of  the  Supreme  Court  of  Errors.^ 

ButlKr,  J.  The  only  question  reserved  for  our  advice  by  the  su- 
perior court  on  this  record  is  ''whether  under  the  statute  on  which 
this  action  is  brought  the  court  has  power  to  find  and  assess  the  dam- 
ages in  the  case  at  a  less  sum  than  one  thousand  dollars."  As  the  stat- 
ute is  express  both  as  to  the  minimum  and  maximum  of  damages,  it 
would  seem  too  clear  for  argument  that,  "under  the  statute,"  to  use 
the  language  of  the  court,  the  minimum  sum  fixed  by  it  at  least  must 
be  recovered. 

But  the  counsel  for  the  defendants,  in  an  ingenious  and  elaborate 
argument,  seek  to  avoid  a  recovery  for  more  "than  nominal  damages, 
on  the  ground  that  the  case  can  and  should  be  taken  from  the  operatioit 
of  the  statute  and  treated  as  an  action  at  common  law.     The  points 

1  This  short  statement  is  sulstituted  for  that  found  in  tlie  official  report. 
A  portion  of  tlie  opinion  is  omitted. 


522  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

which  they  make  are  presented  with  great  apparent  confidence,  and 
we  will  consider  them  fully  in  the  order  in  which  they  are  presented : 

1.  First  then,  the  defendants  claim  that  the  declaration  does  not 
disclose  a  cause  of  action  under  the  statute,  and  does  contain  one  at 
common  law.  They  say  that  an  action  does  not  lie  under  the  statute 
against  the  trustees. 

The  original  eighth  section  of  the  act  of  1853  (Laws  853,  p.  132)  au- 
thorized the  action  against  the  railroad  company  only.  But  we  are  of 
opinion  that  the  act  of  1858,  which  authorized  and  regulated  the  sur- 
render of  the  road  and  franchise  to  trustees  for  the  benefit  of  credi- 
tors, subjected  the  property  in  the  hands  of  such  trustees  to  liability, 
and  them  to  a  suit  under  this  statute.     *     *     * 

3.  The  defendants  insist,  in  the  third  place,  that  if  the  demurrer 
admits  a  statutory  cause  of  action  it  admits  no  specific  facts  as  facts, 
and  therefore  admits  no  statutory  negligence,  and  no  right  except  the 
mere  right  to  recover  nominal  damages.  This  involves  an  inquiry  into 
the  nature  and  effect  of  a  demurrer.  There  has  been  much  discussion 
respecting  them  in  this  court  and  elsewhere  during  the  last  few  years, 
and  still  they  do  not  seem  to  be  clearly  understood.  The  defendants 
certainly  have  misapprehended  them.  The  misapprehension  has  prob- 
ably arisen  from  the  inaccuracy  of  the  usual  expression,  "a  demurrer 
admits,"  etc.  Strictly  speaking  a  demurrer  does  not  admit  anything 
and  in  order  to  express  more  clearly,  and  so  that  they  cannot  be  mis- 
understood, the  views  held  by  this  court,  it  seems  necessary  to  recur 
to  first  principles. 

Every  action  at  law  to  redress  a  wrong  or  enforce  a  right,  if  properly 
instituted,  is  a  syllogism,  of  which  the  major  premise  is  the  proposi- 
tion of  law  involved,  and  the  minor  premise  the  proposition  of  fact, 
and  the  judgment  the  conclusion.  Blackstone  states  it  thus  (Com.  vol. 
3,  p.  396):  "The  judgment,  though  pronounced  or  awarded  by  the 
judges,  is  not  their  determination  or  sentence,  but  the  determination  or 
sentence  of  the  law.  It  is  the  conclusion  that  naturally  and  regularly 
follows  from  the  premises  of  law  and  fact,  which  stand  thus :  Against 
him  who  hath  rode  over  my  corn  I  may  recover  damages  by  law ;  but 
A.  hath  rode  over  my  corn ;  therefore  I  shall  recover  damages  against 
A."  Usually  the  major  premise  is  not  set  out  in  the  declaration,  but 
the  proposition  claimed  is  implied  from  or  involved  in  the  facts  stated. 
The  plaintiff  in  an  action  of  tort,  for  instance,  summons  the  defendant 
to  answer,  for  that  at  a  cetrain  time  and  place  he  committed  in  a  certain 
manner  a  certain  wrong,  to  the  plaintiff's  damage,  etc.,  and  by  so  do- 
ing impliedly  claims  that  the  law  is  so  that  he  is  entitled  On  those 
facts  to  recover.  To  this  syllogism  the  defendant  must  answer  ac- 
cording to  the  rules  of  law.  If  he  expressly  admits  on  the  record  the 
law  and  the  fact,  both  premises,  he  consents  to  the  conclusion,  the 
judgment,  or,  as  it  is  technically  expressed,  "confesses  judgment." 
If  he  declines  or  omits  to  appear  pursuant  to  the  summons,  or  appear- 


I 


Ch.  3)  OBJECTIONS    TO    DEFECTS  523 

ing  declines  or  omits  to  answer  when  called  upon  to  do  so,  he  impliedly 
admits  both  propositions  or  premises  to  be  true  by  his  default,  and 
judgment  follows  technically,  as  a  judgment  by  default,  pursuant  to  a 
necessary  rule  of  law  stated  broadly  by  Mr.  Taylor  (Ev.  669)  thus : 
"Whenever  a  material  averment  well  pleaded  is  passed  over  by  the 
adverse  party  without  denial,  whether  it  be  by  pleading  in  confession 
and  avoidance,  or  by  traversing  some  other  matter,  or  by  demurring 
in  law,  or  by  suffering  judgment  to  go  by  default,  it  is  thereby,  for 
the  purpose  of  pleading  if  not  for  trial  before  the  jury,  conclusively 
admitted.  So  the  defendant  may  traverse  or  expressly  deny  the  facts 
or  the  minor  premise,  and  will  be  held  on  the  same  principle  to  have 
admitted  the  major,  and,  if  the  minor  is  found  true,  judgment — the 
conclusion — is  awarded  on  the  verdict.  And  so  he  may  deny  the 
major  premise,  the  proposition  of  law  involved  by  a  demurrer,  and 
failing  thereby  to  deny  and  passing  over  the  facts,  if  well  pleaded 
and  sufficient  to  constitute  a  premise,  he  defaults  as  to  them,  and  there- 
by and  by  the  same  rule  is  holden  to  have  admitted  them ;  and  if  the 
issue  in  law  is  found  true,  final  judgment  passes  for  the  plaintiff.  The 
facts  if  well  pleaded  and  sufficient  are  admitted,'  not  because  the  de- 
murrer admits  them  expressly  or  by  force  of  any  office  it  performs, 
but  because  the  defendant  has  not  denied  and  has  defaulted  them.  A 
defendant  therefore  who  demurs  to  a  declaration  admits,  not  by  his 
demurrer,  but  by  his  omission  to  deny  them,  all  the  material  well 
pleaded  facts  alleged  in  it ;  ^  and  when  his  demurrer  is  overruled  the 
case  is  in  the  same  condition  precisely  that  it  would  have  been  if  he 
had  suffered  a  default  and  not  demurred.  All  the  difference  between 
the  two  is  that  in  one  case  he  denied  the  major  premise  of  law  and  it 
has  been  found  true,  and,  the  minor  having  been  admitted  by  a  failure 
to  deny,  both  are  to  be  holden  true ;  in  the  other  he  denied  neither, 
and  therefore  both  are  to  be  holden  true. 

The  condition  of  a  case  before  the  court  after  demurrer  overruled 
and  after  default  being  precisely  the  same,  and  the  effect  of  de- 
murring or  defaulting  being  precisely  the  same  in  admitting  the  facts, 
the  question  as  to  both  is  answered  by  what  the  law  is  as  to  either. 
What  then  is  the  effect  of  a  default?  What  facts  does  it  admit?  It 
has  been  said  by  some  writers  and  judges  that  it  admits  the  cause  of 

2  For  numerous  cases  accord,  see  6  Encyc.  Fl.  &  Pr.  334 ;    31  Cyc.  333. 

3  A  demurrer  does  not  admit  facts  which  are  not  well  pleaded — e.  g.,  im- 
material allegations.  Scovill  v.  Seeley,  14  Conn.  23S  (1841) ;  Stinson  v.  Gardin- 
er, 33  Me.  94  (1851);  Brooke  v.  Widdicomhe,  39  Md.  386  (1874);  Amory  v. 
McGregor,  12  Johns.  (N.  Y.)  287  (181 G) ;  allegations  shown  by  the  record  to  be 
untrue,  Tresham  v.  Ford,  Cro.  Eliz.  830  (1(501) ;  Mui"ray  v.  Murfthy,  39  IMiss. 
214,  221  (18G0) ;  allegations  which  the  court  .indiciallv  Ivuows  to  be  uutnie. 
Cole  V.  Maunder,  2  FvoUe,  Abr.  548  (1847) ;  Baulv  v.  Spilman,  3  Dana  (Ky.) 
150  (1835) ;  Louisville,  etc.,  Co.  v.  I'almes,  109  U.  S.  244,  3  Sup.  Ct.  193,  27  L. 
Ed.  922  (1883:  equity);  conclusions  of  law,  31  Cyc.  3-35,  note  80;  6  Ency. 
PI.  &  Pr.  336,  note  4.  See  generally  31  Cyc.  333-337.  and  cases  cited:  C 
Ency.  PL  &  Pr.  334-338,  and  cases  cited;  Stephen  Pleading  (Williston's  Ed.) 
*155.  156. 


524  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

action,  and  by  others,  that  it  admits  a  cause  of  action  merely.  Mr. 
Roscoe  in  his  work  on  evidence  states  the  proposition  broadly  thus — 
"Suffering  a  judgment  by  default  is  an  admission  on  the  record  of 
the  cause  of  action."  The  true  rule  is  that  it  adm.its  the  cause  of 
action  as  alleged,  in  full,  or  to  some  extent,  according  to  the  nature  of 
the  action.  As  it  admits  all  the  material  facts  well  pleaded,  if  a  dis- 
tinct, definite,  entire  cause  of  action  is  set  forth,  which  entitles  the 
plaintiff  to  a  sum  certain  without  further  inquiry,  it  admits  the  cause 
of  action  in  full  as  alleged.  If  by  the  rules  of  law  further  inquiry  is 
to  be  had  to  ascertain  the  amount  due,  or  the  extent  of  the  wrong 
done,  and  of  the  damage  to  be  recovered,  then  it  admits  the  cause  of 
action,  but  not  to  the  extent  alleged,  and  subject  to  such  inquiry.  Thus, 
if  it  be  debt  on  bond  for  a  sum  certain  the  whole  is  admitted,  and  no 
further  inquiry  is  had,  and  so  if  assumpsit  on  a  note  or  bill,  and  there 
are  no  indorsements  entered  on  it,  and  the  defendant  does  not  move 
for  an  inquiry,  the  cause  of  action  and  the  amount  claimed  are  ad- 
mitted. The  note  must  be  produced,  but  need  not  be  proved.  Greene 
V.  Hearne,  3  T.  R.  301 ;  Roscoe,  Ev.  (10  Ed.)  71.  But  in  actions  of 
tort  for  unliquidated  damages  a  different  rule  is  necessarily  applied. 
In  such  actions  the  plaintiff'  does  not  declare  for  a  specific  thing,  but 
has  an  unlimited  license  in  declaring,  and  may  allege  as  much  of  wrong 
and  injury,  and  demand  as  much  damage  as  he  will,  and  recover  by 
proving  any  amount  however  small  if  sufficient  to  sustain  an  action. 
A  defendant  therefore  in  an  action  of  tort  is  not  holden  to  have  ad- 
mitted by  his  default  the  extent  of  the  injury.  It  is  assumed  that, 
as  the  plaintiff  may  allege  more  than  is  true,  he  probably  has  done 
so,  and  the  defendant  by  his  default  is  considered  as  admitting  the 
wrong  to  some  extent,  leaving  that  extent  to  be  inquired  into  to  en- 
able the  court  to  fix  the  damages,  because  such  an  inquiry  is  always 
and  necessarily  had  in  such  cases.  But  he  admits  the  wrong,  and  con- 
sequent right  of  the  plaintiff  to  recover  to  some  extent.  By  our  prac- 
tice this  inquiry  is  not  by  writ  of  inquiry,  or  by  reference,  but  made 
by  the  court  on  a  hearing  in  damages.  On  that  hearing  it  results  from 
the  very  nature  of  the  inquiry  that  any  evidence  tending  to  behttle  or 
mitigate  the  injury  complained  of  and  admitted,  and  any  evidence 
tending  to  aggravate  it,  is  admissible.  If,  in  proving  the  extent  to 
which  he  was  in  fault,  the  defendant  prove  that  he  was  not  in  fault  at 
all,  and  that  the  injury  occurred  through  the  fault  of  the  plaintiff, 
the  plaintiff  cannot  complain.*  The  evidence  does  not  deprive  him 
of  his  right  to  judgment;  it  merely  shows  that,  as  he  is  not  in  fact  en- 
titled to  any  damages,  he  can  only  have  such  as  the  law  gives  him 
by  reason  of  the  admissions  on  the  record.  In  the  light  of  these 
elementary  principles  we  may  see  how  far  the  various  dicta  cited  in 
the  argument  are  true.     One  of  them  is  that  "a  demurrer  admits  no 

4  Havens  v.  Hartford  &  New  Haven  Eailroad  Company,  2S  Conn.  G9  (1S59) 
and  cases  therein  cited.    Accord. 


Ch.  3)  OBJECTIONS    TO    DEFECTS  525 

facts  as  facts."  That,  as  applicable  to  chancery  practice,  is  true,  for 
in  chancery,  when  a  demurrer  is  overruled,  the  respondent  can  an- 
swer over  and  show  the  averments  to  be  untrue;  but  it  is  not  true  at 
law.  It  admits,  or  rather  the  party,  by  demurring  only,  admits,  all 
or  so  much  of  the  facts  as  facts  as  may  be  necessary  to  sustain  a 
judgment.  Again,  it  is  said  "a  demurrer  admits  nothing  as  a  rule  of 
evidence."  If  anything  more  was  intended  by  the  author  of  that  ex- 
pression than  that  it  does  not  admit  facts  alleged  in  the  declaration, 
so  that  they  could  be  used  as  evidence  on  the  inquest,  reference  or 
hearing  in  damages,^  it  is  an  unintelligible  and  unfortunate  expres- 
sion. Of  course  on  the  inquest  or  hearing,  where  the  object  is  to  as- 
certain the  extent  to  which  the  facts  alleged  are  true,  it  would  be  ab- 
surd to  offer  the  facts  alleged  in  evidence,  as  fully  admitted  by  the 
pleadings  to  be  true,  to  prove  themselves  true.  Such  an  inquiry 
would  be  senseless  and  unnecessary.  Again,  it  is  said  that  a  demurrer 
admits  the  facts  alleged  for  the  sole  purpose  of  testing  their  legal 
sutliciency.  This  too,  is  an  attempt  to  use  at  law  a  rule  in  chancery. 
In  chancery  practice,  as  we  have  said,  the  facts  are  not  admitted  by 
being  passed  over,  but  are  supposed  to  be  true,  for  the  purpose  of 
testing  their  legal  sufficiency  at  law.  They  are,  each  and  all  that  are 
material,  admitted  to  be  true  to  some  extent,  as  the  basis  of  a  final 
judgment.  And  so  of  the  claim  that  "a  demurrer  admits  a  mere  right 
to  recover  nominal  damages."  It  admits  no  right.  It  admits,  or  the 
party  by  demurring  admits,  the  facts  as  true  to  some  extent.  The 
law  bases  the  right  and  the  judgment  on  the  facts  as  admitted. 

Applying  these  principles  to  this  case,  we  are  satisfied  the  plaintiff 
is  entitled  to  recover  the  sum  of  one  thousand  dollars.  The  defendant 
by  his  demurrer  and  his  omission  to  deny  the  facts  admitted  the  cause 
of  action  and  every  material  element  of  it,  and  negligence  was  one  of 
them.  If  the  damages  had  been  fixed  by  the  statute  at  a  single  sum 
of  $1,000  or  $5,000,  no  hearing  in  damages  would  have  been  necessary 
or  proper.  No  evidence  which  the  defendant  could  properly  offer,  and 
no  fact  which  the  court  could  properly  find,  would  aft'ect  the  right  of 
the  plaintiff  to  recover  that  sum.  And  this  is  true  whether  the  stat- 
ute be  regarded  as  giving  a  new  right  of  action,  or  regulating  the 
amount  of  damages  and  their  disposition  in  an  old  one.  The  statute 
gives  the  court  a  discretion  as  to  the  amount  of  the  damage  above  the 
sum  of  $1,000  and  up  to  $5,000,  and  to  that  extent  the  court  could 
properly  inquire  and  were  bound  to  inquire.  It  is  of  no  importance 
that  the  court  have  found  there  was  no  negligence  in  fact.  The  ex- 
istence  of   sufficient   negligence  to  give  a  right  of   recovery  on   the 

5  That  a  demurrer  does  not  admit  facts  well  pleaded  for  iise  on  the  trial  of 
other  issues  in  the  case  or  after  withdra\Aal  of  the  demurrer  or  after  leave  to 
plead  over,  see  Havens  v.  Ha^rtford  &  New  Haven  Railroad  Company,  28 
Conn.  69  (1S59) ;  Stinson  v.  Gardiner,  33  Me.  (semble)  94  (1S51) ;  Bowen  v. 
Grand  Trunk  Ry.  Co.,  S6  Vt.  4S3,  86  Atl.  306  (1913) ;  6  Ency.  PI.  &  Pr.  338 ; 
31  Cyc.  337,  338. 


526  PRINCIPLES  OF   GENERAL  APPLICATION  (Part  3 

Statute,  if  it  gives  a  new  action,  was  a  material  fact,  a  material  ele- 
ment of  the  cause  of  action,  and  was  conclusively  admitted.  And  so 
of  every  other  material  element  of  a  cause  of  action  under  the  statute 
which  was  alleged,  for  all  the  allegations  necessary  to  bring  the 
plaintiff's  case  within  the  statute  and  give  him  the  right  of  action 
provided  by  the  statute  were  material,  and  were  of  course  admitted  by 
the  omission  to  traverse  them. 

We  advise  judgment  for  the  sum  of  $1,000. 

In  this  opinion  the  other  Judges  concurred. 


HALE  v.  HALL. 

(Constitutional  Court  of  South  Carolina,  1809.  2  Brev.  316.) 
Action  in  debt  on  a  bail  bond  of  one  Haddon.  To  the  declaration 
the  defendant  demurred  specially,  and  assigned  for  causes :  (1)  That 
by  the  condition  of  the  bond,  as  stated  in  the  declaration,  it  does  not 
appear  that  Haddon  was  to  appear  to  answer  on  the  day  of  the  return 
of  the  writ,  or  any  day  in  term;  (2)  that  the  expression  of  the  sum  in 
the  obligatory  part  of  the  bond  is  vague,  uncertain,  and  obscure. 
Judgment  for  defendant  upon  the  demurrer.  Plaintiff  now  moves  to 
reverse  the  judgment.'' 

May  6th.  The  opinion  of  the  court  was  declared  by  Brs;vard,  J., 
after  stating  the  matter  set  forth  in  the  declaration,  and  the  aver- 
ments. To  this  declaration  there  is  a  special  demurrer  for  the  in- 
sufficiency of  the  declaration;  and  the  question  was  referred  to  the 
judgment  of  the  District  Court.  The  decision  of  that  court  was  for 
the  defendant,  in  support  of  the  demurrer,  and  the  plaintiff  has  ap- 
pealed to  this  court.  He  has  been  fully  heard  by  his  counsel ;  and  the 
arguments  urged  in  his  behalf  have  been  duly  considered.  It  is  a  clear 
rule  of  law  that  in  all  cases  where  pleadings  are  demurred  to  for  mat- 
ter of  form,  and  for  the  causes  specified  in  the  Acts  4  and  5  Ann.,  a 
special  demurrer  is  requisite,  but  not  for  matter  of  substance.  A  gen- 
eral demurrer  in  regard  to  matters  of  substance  is  always  sufficient. 
In  doubtful  cases,  however,  it  is  recommended  as  best  to  assign  the 
special  causes  of  demurrer ;  because,  on  a  special  demurrer,  advantage 
cannot  only  be  taken  of  the  matters  of  form  specially  set  forth,  but 
also  of  any  matter  of  substance  not  expressly  alleged ;  but  on  the 
general  demurrer  no  matter   of   form  can'  be   taken  advantage   of.'^ 

6  The  statement  of  the  case  is  condensed. 

,7  6  Ency.  PL  &  Pr.  308;  31  Cyc.  272;  Stephen,  Pleading  (Wmistoa's  Ed.) 
*154 ;    1  Chitty,  Pleading  (Am.  Ed.  1809)  *639-*643.     Accord. 

"There  were  special  demurrers  at  common  law,  but  they  were  never  neces- 
sary but  in  cases  of  duplicity,  and  therefore  they  were  seldom  practiced ;  for 
as  the  law  was  then  taken  to  be  upon  a  special  demurrer,  the  party  could 
take  advantage  of  no  other  defect  in  the  i)leading,  but  to  that  which  was 
specially  assigned  for  cause  of  his  demurring.''  Holt,  C.  J.,  in  Anonymous,  'd 
Salk.  122  (1703). 


Ch.  3)  OBJECTIONS   TO    DEFECTS  52T 

1  Sellon,  335.  It  is  also  a  rule  that,  if  the  declaration  is  founded  on 
a  bond,  or  other  specialty,  the  defendant  may  demand  oyer,  and  if  it 
shows  no  cause  of  action  he  may  demur;  for  the  deed  on  oyer  is 
part  of  the  declaration.  Com.  Dig.  484.  And  where  the  plaintiff 
claims  by  a  deed  in  the  pleadings,  he  must  make  a  profert  of  it  to  the 
court;  and  the  deed  itself  must  be  shewn.  Bull.  249.  In  this  case 
the  defendant  has  not  demanded  oyer  of  the  bond,  and  condition.  The 
condition  must,  therefore,  be  laid  out  of  view,  unless  it  can  be  con- 
sidered as  relevant  matter,  and  properly  brought  into  notice  by  the 
averments  in  the  declaration.  The  question  is  as  to  the  sufficiency  of 
the  declaration,  both  as  to  form  and  substance.  An  action  of  debt 
is  founded  on  a  contract,  either  express  or  implied,  in  which  the  cer- 
tainty of  the  sum  or  duty  appears ;  and  the  plaintiff  is  to  recover  the 
sum  in  numero,  and  not  to  be  repaired  in  damages,  as  in  actions  which 
sound  only  in  damages.  Bull.  167;  2  Bac.  Abr.  13,  20;  4  Co.  50.  But 
when  the  damages  can  be  reduced  by  averment  to  a  certainty,  the  ac- 
tion of  debt  lies,  as  on  a  covenant  to  pay  so  much  per  load.  3  Lev. 
429;  2  Salk..658;  2  Rayni.  815. 

The  plaintiff  in  this  action  demands  $235,  and  declares  on  a  specialty 
containing  an  obligation  to  pay  $170,  with  interest,  and  costs  of  suit. 
The  declaration  is  not  excepted  to,  on  the  ground  of  a  variance  be- 
tween the  writ  and  declaration ;  because  the  plaintiff  has  gone  on  in 
his  declaration  to  explain  what  was  meant,  and  intended  by  the  words 
"interest  and  costs,"  in  the  bond,  and  to  aver  that  such  and  such  facts 
existed,  and  that  such  was  the  intent  of  the  parties  in  the  contract,  and 
that  the  sums  meant  by  the  words  interest  and  costs,  when  added  to 
the  principal  sum  expressed  in  the  bond,  amount  together  to  the  ex- 
act sum  demanded  by  the  writ.  It  has  been  said  that,  although  the 
general  rule  is  that  the  action  of  debt  must  be  for  a  sum  certain,  yet 
it  will  lie  for  a  sum  which  is  not  certainly  expressed,  or  not  ascertained 
at  the  time  of  the  contract,  but  which  is  capable  of  being  ascertained, 
and  made  certain  at  the  time  of  the  action  brought.  Doug.  6;  Bl. 
Rep.  1221 ;  1  H.  Bl.  Rep.  249.  But  this  doctrine  cannot  be  applied  to 
actions  of  debt  founded  on  specialty,  but  to  simple  contracts  only. 
The  specialty  which  will  support  an  action  of  debt,  must  express  a 
sum  certain.  The  quantum  of  the  debt  should  be  clearly  and  certainly 
fixed  by  the  instrument  on  which  the  debt  is  founded ;  or  the  instru- 
ment should  itself  furnish  such  data  as  would  infallibly  lead  to  a 
certain  ascertainment  of  the  debt.  The  rule  by  which  the  uncer- 
tainty apparent,  on  the  face  of  the  instrument,  on  which  the  debt  is 
founded,  is  to  be  reduced  to  certainty,  must  be  furnished  by  the  in- 
strument itself,  and  that  rule  must  itself  be  certain ;  such  a  one  as  will 
lead  to  a  certain  result,  and  not  be  liable  to  vary  according  to  extrinsic 
circumstances,  or  depend  on  parol  evidence,  dehors  the  specialty. 
The  specialty  in  the  present  case  does  not  furnish  such  a  rule;  and 
the  uncertainty  is  not  cured  by  the  averments.    It  has  been  argued  that 


o28  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

the  facts  set  forth  in  the  averments  must  be  taken  as  true,  because  they 
are  admitted  by  the  demurrer;  and  if  the  facts  be  admitted,  the 
amount  of  the  debt  is  admitted,  which  corresponds  with  the  writ.  But 
this  argument  is  founded  on  a  petitio  principii.  The  fact  is  assumed 
that  the  averments  are  well  pleaded,  and  then  the  rule  is  applied  that 
whatever  is  well  pleaded  must  be  considered  as  admitted.  But  it  has 
not  been  shewn  that  the  averments  are  well  pleaded;  and  we  are  all 
of  the  opinion  they  are  not  so. 

The  declaration  is  faulty,  and  the  judgment  of  the  District  Court 
must  be  affirmed.  The  plaintiff  cannot  recover  less  than  he  has  de- 
manded in  this  action,  as  he  might  do  if  the  action  had  been  founded 
on  simple  contract.  He  may,  however,  in  some  other  form  of  action, 
recover  the  interests  and  costs  in  question,  together  with  the  specific 
sum  mentioned  in  the  obligation. 

Motion  overruled. 


STATE  ex  rel.  GARRISON  v.  COMMISSIONERS  OF  PUTNAM 

COUNTY. 

(Supreme  Court  of  Florida,  1SS7.     23  Fla.  632,  3  South.  164.) 

[An  alternative  writ  of  mandamus  was  issued  commanding  the 
County  Commissioners  to  cause  Brown's  Landing  road  to  be  repaired, 
or  show  cause  why  they  should  not  do  so.®] 

The  County  Commissioners  interposed  a  demurrer,  which  we  will 
treat  as  being  to  the  alternative  writ,  which  is  the  declaration  in  a 
mandamus  case.     The  grounds  of  this  demurrer  are  as  follows : 

1st.     *     *     * 

4th.  That  in  a  case  of  the  State  v.  Palatka  &  Indian  River  Railroad 
Company,  this  question  has  been  already  passed  upon  by  this  court 
(Putnam  County  Circuit  Court),  and  an  order  made  directing  the  re- 
moval of  the  obstruction  by  the  sheriff  of  the  county,  and  such  order 
has  been  suspended  by  an  appeal  to  the  Supreme  Court,  and  is  now 
pending  there.  The  Circuit  Judge  sustained  the  demurrer  and  dis- 
missed the  writ,  and  from  this  order  of  dismissal  an  appeal  has  been 
taken. 

Mr.  Justice  Rani;y  delivered  the  opinion  of  the  court. 

I.  The  fourth  ground  of  demurrer  introduces  matter  of  fact  which 
does  not  appear  upon  the  face  of  the  alternative  writ,  and  is,  there- 
fore, not  within  the  province  of  a  demurrer,  and  cannot  be  considered. 
Gould's  Pleading,  c.  2,  §  43,  c.  9,  §  2.''     *     *     * 

The  judgment  of  the  Circuit  Court  is  reversed. 

8  This  statement  is  substituted  for  tlie  reported  statement  of  the  contents 
of  tlie  alternative  writ.     Only  a  portion  of  the  opinion  is  printed. 

9  For  numerous  cases  accord,  see  note,  14  Ann.  Cas.  348 ;  31  Cyc.  322,  and 
cases  cited ;  6  Ency.  PI.  &  Pr.  297,  298,  and  cases  cited ;  Stephen,  Pleading 
(Williston's  Ed.)  *68,  69 ;    1  Chitty,  Pleading  (Am.  Ed.  1809)  *644.     See  Hale 


Ch.  3)  OBJECTIONS    TO    DEFECTS  529 

MOORE,  ADM'R,  v.  I^ESEUR  AND  WIFE. 
(Supreme  Court  of  Alabama,  1851.     18  Ala.  606.) 

Chilton,  J.^°  This  was  an  action  of  debt  brought  by  the  plaintiff 
in  error  to  recover  of  the  defendants  upon  a  writing,  in  the  follow- 
ing form:  "$2535.  By  the  25th  December  next,  I  promise  to  pay  the 
Thomas  J.  Moore,  administrator  of  H.  H.  Moore,  deceased,  twenty- 
five  hundred  and  thirty-five  dollars,  for  value  received  of  him.  Feb. 
10th,  1837.     [Signed]  Penelope  N.  Moore.     [Seal.]" 

The  first  count  of  the  declaration  describes  this  instrument  as  a 
writing  obligatory — sealed,  etc.  The  second  count  declares  upon  it  as 
-a  promissory  note.  The  common  indebitatus  counts  are  added.  The 
defendants  pleaded  to  all  the  counts,  "that  they  did  not  owe  the  said 
sums  of  money  demanded,  or  any  part  thereof,  in  manner  and  form," 
etc. ;  and  to  the  2d,  3d  and  4th  counts  they  pleaded  the  action  did  not 
accrue  within  six  years  next  before  the  commencement  of  this  suit, 
etc.  The  plaintiff  took  issue  upon  the  first  plea,  and  to  the  second 
replied  that  the  defendants  did,  within  six  years  next  before  the  com- 
mencement of  the  suit,  undertake  and  promise,  etc.  Rejoinder  that 
the  said  Penelope  N.  Leseur  did  not,  while  sole  and  unmarried,  prom- 
ise within  six  years  next  before,  etc.  To  this  rejoinder  the  plaintiff 
demurred,  and  the  court  sustained  the  demurrer.     *     *     * 

1.  It  is  insisted  that  the  plea  of  nil  debet  to  the  first  count,  which  is 
upon  a  sealed  instrument,  is  bad,  and  that  the  demurrer  to  the  rejoin- 
der of  the  defendants  to  the  plaintiff's  replication  to  the  second  plea 
reaches  back  to  the  first  plea,  notwithstanding  the  plaintiff  had  taken 
issue  upon  that  plea,  raising  no  objection  whatever  to  it.  We  do  not 
so  understand  the  law,  as  to  the  effect  of  this  demurrer.  A  demurrer 
opens  the  pleadings  and  goes  back  to  the  first  error,^^  but  we  have  no- 
where seen  it  held  that  it  could  be  visited  back  in  favor  of  the  party 
demurring  upon  separate  and  totally  distinct  pleas,  upon  which  he 
had  taken  issue,  thereby  waiving  all  objection  to  them,  and  expressly 
withdrawing  them  from  the  consideration  of  the  court  on  demurrer. 

V.  Hall,  supra,  p.  526.  "The  matter  of  estoppel  set  up  in  the  demurrer  arises 
dehors  the  plea,  aud  the  demurrer  setting  up  such  facts  is  a  mere  speaking 
demurrer.  It  was  an  attempt  to  reach  by  demurrer  that  which  should  have 
been  set  up  by  replication  to  the  plea."  Haralson,  J.,  in  First  National  Bank 
V.  Lelaud,  122  Ala.  289,  294,  25  South,  195,  196  (1899). 

10  Portions  of  the  opinion  are  omitted. 

11  "I  have  no  doubt  that  on  demurrer  the  court  will  look  through  the  whole 
proceedings,  and  wherever  the  first  fault  arises,  there  th<>y  will  lay  their  finger, 
and  give  judgment  against  such  of  the  parties  as  shall  have  committed  it, 
*  *  *  and  the  reason  of  this  course  of  proceeding  in  the  court  is  fundamen- 
tally right ;  for  should  they,  in  the  first  instance,  rectify  the  last  fault,  they 
must  then  hear  another  motion  to  set  the  preceding  one  to  rights  also ;  by 
which  mode  half  a  dozen  questions  might  be  made  on  the  propriety  of  proceed- 
ings, only  one  of  which  might  be  determined  at  any  one  court."  Grimke.  J., 
in  Ordinary  v.  Bracey,  1  Brev.  (S.  C.)  191.  196  (1802).  For  numerous  cases 
accord,  see  31  Cyc.  338,  6  Ency.  PL  &  Pr.  326. 


530  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

We  apprehend  no  such  decision  can  be  found.     1  Chitty's  PL  (edition 
of  1847)  668,  669,  and  note  l.     *     *     * 

It  follows  from  the  views  we  have  expressed,  that  the  court  did  not 
err  in  giving  judgment  upon  the  demurrer  for  the  defendants  below.  ' 

It  is  therefore  affiirmed.^^ 


AUBURN  &  OWASCO  CANAL  CO.  v.  LEITCH. 
(Supreme  Court  of  New  York,  lSi7.    4  Denio,  65.) 

Demurrer  to  a  replication.  The  declaration  was  in  assumpsit  for 
the  recovery  of  certain  installments  due  upon  shares  of  the  capital 
stock  of  the  plaintiff  corporation,  subscribed  for  by  the  defendant. 
Pleas:  1.  Non  assumpsit.  2.  Nul  tiel  corporation.  Replication  to 
the  second  plea,  setting  out  the  act  incorporating  the  plaintiff,  to- 
gether with  certain  acts  amending  and  continuing  that  act.  The  de- 
fendant demurred  to  the  replication,  and  the  plaintiff  joined  in  de- 
murrer. 

Bronson,  C.  J.  The  defendant  insists  that  the  declaration  is  bad 
on  general  demurrer.  (The  chief  justice  then  examined  the  pleadings, 
and  came  to  the  conclusion  that  the  declaration  was  substantially  de- 
fective, and  then  proceeded  as  follows :)  But  it  is  said  that,  as  the 
defendant  pleaded  non  assumpsit  as  well  as  nul  tiel  corporation,  he 
cannot  upon  this  demurrer  go  back,  and  attack  the  declaration;  and 
several  cases  have  been  cited  to  sustain  that  position.  But  it  will  be 
found  on  examination  that  the  point  has  never  been  directly  and  nec- 
essarily adjudged.  The  doctrine  was  first  started  in  Wheeler  v.  Cur- 
tis, 11  Wend.  653,  and  was  there  supposed  to  result  from  the  well- 
established  rule  that  the  defendant  cannot  both  plead  and  demur  to 
the  same  count.  It  was  said  that  the  defendant  should  not  be  allowed 
to  do  indirectly,  what  he  would  have  no  right  to  do  directly.  But  the 
question  whether  the  declaration  was  good  or  bad  was  not  decided. 
The  cause  went  off  upon  other  grounds;  and  the  point  in  cjuestion  was 
not  necessarily  settled.  In  Dearborn  v.  Kent,  14  Wend.  183,  the  dic- 
tum in  the  first  case  was  repeated;  but  it  was  expressly  held  that  the 
declaration  was  sufficient;  so  that  it  was  wholly  unnecessary  to  in- 
quire whether  the  defendant  was  at  liberty  to  make  the  question  or 
not.     Russell  v.  Rogers,  15  Wend.  351,  is  the  next  case;  and  there  it 

12  In  Davies  v.  Penton,  6  B.  &  C.  21f)  (1S27),  to  a  declaration  for  breach  of 
articles  of  agreement  the  defendant  pleaded  two  pleas.  The  plaintiff  demur- 
red to  one  plea  and  for  a  replication  to  the  other  alleged  a  discharge  in  bank- 
ruptcy. Littledale,  J.,  said :  "Then  it  is  said  that  the  plaintiff  has  no  right 
of  action,  because  it  appears  upon  the  record  that  he  had  become  bankrupt. 
*  *  *  But  supposing  anything  turned  on  the  question  of  bankruptcy,  we 
should  be  bound  to  decide  on  the  plea  and  denmrrer  following  one  another. 
We  must  treat  the  count,  plea  and  replication,  and  the  count,  plea,  and  de- 
murrer, as  distinct  records,  and  give  judgment  upon  each  without  reference 
to  the  other." 


Ch.  3)  OBJECTIONS   TO    DEFECTS  531 

was  not  decided  whether  the  declaration  was  good  or  bad.  It  was  ap- 
parently good;  so  that  the  point  in  question  did  not  necessarily  arise. 
In  Miller  v.  Maxwell,  16  Wend.  9,  this  doctrine  was  mentioned  for  the 
last  time ;  and  the  same  learned  j  udge  who  first  started  it  went  a  great 
way  towards  knocking  it  on  the  head.  In  that  case  the  defendant 
pleaded  the  general  issue,  and  two  special  pleas.  The  plaintiff  de- 
murred to  the  special  pleas,  and  they  were  adjudged  bad;  but  the  de- 
fendant was  allowed  to  go  back  and  attack  the  declaration;  and  judg- 
ment was  given  against  the  plaintiff  for  the  insufficiency  of  that  plead- 
ing. Now,  although  the  learned  judge  who  delivered  the  opinion  of 
the  court  took  a  distinction  between  a  defect  in  the  declaration  which 
would  not  be  cured  by  a  verdict  and  one  which  could  only  be  reached 
by  a  demurrer,  the  principle  of  that  case  is  directly  opposed  to  the 
dicta  which  had  preceded  it. 

It  is  quite  clear  that  the  defendant  cannot  both  plead  and  demur  to 
the  same  count.  And  it  is  equally  clear  that  at  the  common  law  he 
could  not  have  two  pleas  to  the  .same  count.  Indeed  the  two  things, 
though  stated  in  different  words,  are  only  parts  of  one  common-law 
rule,  to  wit,  that  the  defendant  cannot  make  two  answers  to  the  same 
pleading.  The  statute  of  4  and  5  Anne,  c.  16,  was  made  to  remedy 
this  inconvenience ;  and  it  allowed  the  defendant,  with  the  leave  of  the 
court,  to  plead  as  many  several  matters  as  he  should  think  necessary 
for  his  defence.  With  us  leave  of  the  court  is  no  longer  necessary. 
2  Rev.  St.  (1st  Ed.)  pt.  3,  c.  6,  tit.  2,  §  9.  The  statute  does  not  say 
that  the  defendant  may  both  plead  and  demur ;  and  consequently  he 
cannot  make  two  such  answers.  But  he  may  plead  two  or  more  pleas ; 
some  of  which  may  terminate  in  issues  of  fact,  to  be  tried  by  a  jury ; 
while  others  may  result  in  issues  of  law,  to  be  determined  by  the  court. 
And  whenever  we  come  to  a  demurrer,  whether  it  be  to  the  plea,  repli- 
cation, rejoinder,  or  still  further  onward,  the  rule  is  to  give  judgment 
against  the  party  who  committed  the  lirst  fault  in  pleading,  if  the 
fault  be  such  as  would  make  the  pleading  bad  on  general  demurrer. 
This  rule  has  always  prevailed.  It  was  the  rule  prior  to  the  statute 
of  Anne;  and  to  say  that  the  defendant,  because  he  pleads  two  pleas, 
one  of  which  results  in  a  demurrer,  cannot  go  back  and  attack  the 
declaration,  would  be  to  deprive  him  of  a  portion  of  the  privilege 
which  the  legislature  intended  to  confer.  He  cannot  plead  and  demur 
at  the  same  time,  because  the  common  law  forbids  it;  and  the  statute 
does  not  allow  it.  But  he  may  plead  two  pleas ;  and  he  takes  the 
right  with  all  its  legitimate  consequences ;  one  of  which  is  that,  when- 
ever there  comes  a  demurrer  upon  either  of  the  two  lines  of  pleading, 
he  may  run  back  upon  that  line  to  see  which  party  committed  the  first 
fault;  and  against  that  party  judgment  will  be  rendered.  Aside  from 
the  dicta  in  question,  there  is  not  a  shadow  of  authority,  either  here 
or  in  England,  for  a  different  doctrine. 

Although  it  seems  that  no  case  upon  this  point  has  found  its  way 
into  the  books,  I  well  remember  that  since  the  decision  in  Miller  v. 


532  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3^ 

Maxwell,  16  Wend.  9,  it  has  been  several  times  announced  from  the 
bench  that  in  a  case  like  this  the  defendant  was  at  liberty  to  go  back 
and  attack  the  declaration ;  and  I  think  the  point  has  been  more  than 
once  directly  decided.  I  know  that  the  late  Mr.  Justice  Cowen  enter- 
tained and  expressed  that  opinion,  as  I  did  myself ;  and  it  is  also  the 
opinion  of  my  present  associates.  I  would  not  lightly  overrule  so  much 
as  a  mere  dictum,  if  it  was  of  the  nature  of  a  rule  of  property,  and 
had  stood  long  enough  to  become  one.  But  this  is  not  a  question  of 
that  kind. 

Judgment  for  the  defendant.^^ 


DUNLEVY  V.  FENTON. 

(Supreme  Coiu-t  of  Vermont,  1908.     80  Yt.  505,  68  Atl.  651,  130  Am. 

St.  Kep.  1009.) 

Assumpsit  for  breach  of  a  marriage  promise.  Heard  on  special  de- 
murrer to  plaintiff's  replication  to  defendant's  sixth  special  plea,  at 
the  September  term,  1907,  Windham  county,  Haselton,  J.,  presiding. 
Demurrer  overruled  and  replication  adjudged  sufficient.  The  defend- 
ant excepted.  The  opinion  states  the  substance  of  the  pleadings  in 
question. 

MuNSON,  J.**  The  plea  alleges,  in  substance,  that  the  plaintiff  by 
her  deed  in  writing  under  her  hand  and  seal  released  and  discharged 
the  defendant  from  the  cause  of  action  sued  upon,  and  covenanted  and 
agreed  that  at  the  next  succeeding  term  the  suit  should  be  entered, 
"settled,  and  discontinued,"  and  makes  profert  of  said  deed. 

The  replication  alleges  in  substance  that  the  plaintiff  made  said 
supposed  deed  of  release,  and  delivered  it  to  one  Garceau,  on  condi- 
tion and  in  consideration  that  the  defendant  then  promised  that  he 
would  make  and  deliver  to  the  plaintiff  a  like  deed  of  release  discharg- 
ing the  plaintiff  to  the  same  extent,  and  would  deliver  to  the  plaintiff 
the  pleas  prepared  in  the  case,  and  would  leave  $500  with  Garceau  for 
the  plaintiff  by  a  time  stated,  and  that  both  parties  should  treat  such 
agreement  as  strictly  confidential ;    and  alleges  further  that  the  parties 

18  The  decisions  in  Illinois  are  contra  on  ttie  ground  tlaat  one  cannot  plead 
and  demur  at  tlie  same  time.  See  note  26  L.  R.  A.  (N.  S.)  117 ;  10  111.  Law 
Rev.  417. 

In  Illinois  it  Is  the  rule  that  where  a  demurrer  to  a  pleading  has  been  over^ 
ruled,  and  the  party  interposing  the  demurrer  has  pleaded  over,  if  a  demurrer 
is  filed  to  a  subsequent  pleading,  it  does  not  open  the  record  so  as  to  attack 
the  pleading  to  which  a  demurrer  had  been  previously  overruled.  Fish  v. 
Farwell,  160  111.  236,  43  N.  E.  367  (1896) ;  City  of  Chicago  v.  People,  210  111. 
84,  92,  71  N.  E.  816  (1904) ;  10  111.  Law  Rev.  424.  But  the  weight  of  authority 
is  'otherwise.  Cummins  v.  Gray,  4  Stew.  &  P.  (Ala.)  397  (1833) ;  Childress  v. 
Foster,  3  Ark.  252  (1848) ;  Johnson  v.  Pensacola,  etc.,  Co.,  16  Fla.  623,  26  Am. 
Rep  731  (1878) ;  Perrin  v.  Tliurman,,  4  T.  B.  Mon.  (Ky.)  176  (1826) ;  Wales  v. 
Lvon  '>  Mich  276,  281  (1851) ;  Lafayette  Bridge  Co.  v.  City  of  Streator  (C.  C.) 
105  Fed.  729,  732  (1900) ;    Aurora  v.  West,  7  Wall.  82,  93,  19  L.  Ed.  42  (186S). 

14  A  portion  of  the  opinion  is  omitted. 


Ch.  3)  OBJECTIONS   TO   DEFECTS  53S 

were  to  meet  at  Garceau's  office  at  the  time  stated,  and  that  Garceau 
was  then  to  deUver  said  money  to  the  plaintiff  and  said  supposed  deed 
of  release  to  the  defendant,  but  that  said  deed  was  not  to  be  of  any 
force  until  defendant  had  fully  complied  with  every  condition  of  said 
agreement ;  and  alleges  further  that  the  terms  of  said  agreement  were 
made  public  by  defendant,  that  said  pleas  were  not  delivered  to  the 
plaintiff,  but  were  filed  in  court,  and  that  neither  the  defendant's  re- 
lease nor  said  sum  of  money  was  delivered  to  the  plaintiff,  that  plain- 
tiff was  at  Garceau's  office  at  the  time  named,  and  was  then  informed 
by  Garceau  that  the  defendant  had  not  left  said  money  as  agreed,  and 
that  plaintiff  waited  some  time  without  the  defendant  appearing,  and 
then  demanded  of  Garceau  the  return  of  her  said  supposed  deed  of 
release,  but  that  Garceau  refused  to  return  it,  and  afterwards  delivered 
it  to  defendant's  attorneys  against  her  protest,  and  that  the  supposed 
deed  pleaded  by  defendant  is  not  her  deed  of  release,  concluding  with 
a  verification. 

The  replication  is  demurred  to,  and  special  causes  of  demurrer  are 
assigned,  which  are,  in  substance,  that  it  does  not  answer  the  plea, 
either  by  a  general  form  of  denial  or  by  a  denial  of  any  single  material 
fact ;  that  it  advances  new  matter,  and  thereby  sets  forth  a  contract 
different  from  that  stated  in  the  plea,  and  so  amounts  to  the  general 
issue;  and  that  it  does  not  confess  and  avoid  any  material  allegation 
of  the  plea. 

The  plaintiff  claims  that  the  plea  is  defective,  in  that  it  fails  to  al- 
lege a  delivery  of  the  deed  of  release,  and  that  if  it  be  held  that  a 
delivery  of  the  deed  is  sufficiently  alleged,  the  plea  is  double,  in  that  it 
sets  up  a  release  of  the  cause  of  action  and  a  covenant  to  discontinue 
the  suit,  and  that,  inasmuch  as  the  plea  is  bad,  it  is  sufficiently  answer- 
ed by  the  replication,  even  though  that  be  defective.  The  demurrer 
reaches  all  the  pleadings,  but  has  the  force  of  a  general  demurrer  only, 
as  applied  to  pleadings  prior  to  the  one  demurred  to.^^  So  it  reaches 
only  substantial  defects  in  the  plea,  and,  if  a  delivery  of  the  release 
is  argumentatively  alleged,  the  plea  is  sufficient,  for  argumentativeness 
and  duplicity  are  but  defect  of  form.  We  think  a  delivery  of  the  deed 
pf  release  is  argumentatively  alleged.  The  allegation  is  not  that  the 
plaintiff  made  a  deed  releasing  the  defendant,  but  that  by  her  deed  she 
released  him,  which  implies  a  delivery.  So  the  plea  is  sufficient,  and, 
if  the  replication  stands,  it  must  be  upon  its  merits.  *  *  *  "We 
hold  the  replication  insufficient  on  both  the  grounds  considered. 

Judgment  reversed,  demurrer  overruled  as  to  the  plea  and  plea  ad- 
judged sufficient,  demurrer  sustained  as  to  the  replication,  and  that 
adjudged  insufficient,  and  cause  remanded. 

15  For  numerous  cases  accord,  see  6  Ency.  PI.  &  Pr.  333,  note  1  ;  31  Cvc.  341, 
note  21. 


534  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

LANGLEY  v.  METROPOLITAN  LIFE  INS.  CO. 

(Supreme  Court  of  Rhode  Island,  1SS7.     16  R.  I.  21,  11  Atl,  174.) 

PDr  Curiam.  The  demurrer  to  the  declaration  must  be  overruled. 
The  declaration  contains  a  special  count  on  a  policy  of  life  insurance, 
also  a  count  on  account  settled  or  stated,  and  the  common  counts.  The 
demurrer  is  a  general  demurrer  to  the  entire  declaration.  Of  course 
it  is  bad  if  either  count  is  sufficient.  The  defendant  does  not  claim 
to  point  out  any  defect  in  any  but  the  first  count,  and  we  do  not  dis- 
cover any  defect  in  the  other  counts.  Gouldj  PI.  c.  5,  §  6;  1  Chit.  Pl. 
*696.    Demurrer  overruled.^® 


SILVER  V.  RHODES. 

(Superior  Court  of  Delaware,  1837.    2  Har.  369.) 

[Action  on  the  statute  for  not  entering  satisfaction  on  a  judgment. 
Demurrer  to  the  declaration.  The  conclusion  of  the  court  upon  the 
demurrer  was  as  follows :  "We,  therefore,  hold  the  declaration  in 
this  case  to  be  sufficient,  and  overrule  the  demurrer.  Judgment  for 
plaintiff.]  ^^ 

On  this  judgment  the  plaintiff  executed  a  writ  of  inquiry  in  vaca- 
•tion,  and  recovered  $10  damages;  the  costs  of  the  inquisition  being 
$23. 

16  For  very  numerous  cases  in  accord,  see  6  Ency.  PI.  &  Pr.  301,  note  4 ;  31 
Cyc.  329,  note  61. 

In  like  manner,  where  a  plea  purports  to  answer  a  declaration  consisting  of 
several  counts  and  is  insufficient  as  to  any  one  of  them,  it  is  bad  on  demurrer. 
16  Ency.  PI.  &  Pr.  .577-.579 ;  31  Cyc.  142,  note  58.  Cf.  Fleming  v.  Mayor,  40 
Is'.  J.  Law  270  (1S7S),  page  439,  supra,  and  notes  thereto. 

"With  respect  to  the  subject  of  a  demurrer  being  too  large,  there  is  a  very 
learned  note  of  my  brother  Manning  to  the  case  of  Hinde  v.  Gray,  1  ]Man.  & 
G.  201  (1840),  note  (a),  which,  in  my  opinion  is  entitled  to  considerable  weight. 
He  states  the  modern  practice  as  to  overruling  demurrers  as  being  too  large 
to  have  been  imported  from  courts  of  equity.  There  had  been  formerly  cases 
in  the  Court  of  Queen's  Bench,  and  also  in  the  Court  of  Common  Pleas,  where 
demurrers  had  been  said  to  be  overruled  as  being  too  large,  which  have  been 
followed  by  subsequent  decisions  in  this  court.  The  question  is,  Is  that  prac- 
tice right  or  not,  or  ought  not  the  court  on  such  demurrer  to  give  judgment 
on  the  whole  record,  according  to  the  truth?  I  think  the  observations  in  that 
note  are  entitled  to  considerable  weight,  and  I  ajn  inclined  to  think  tlie  prac- 
tice has  been  wrong,  and  that  judgment  on  demurrer  should  be  given  on  the 
whole  record  according  to  the  truth.  Take  for  instance,  the  case  of  a  general 
demurrer  to  two  counts,  one  of  which  is  good  and  the  other  bad,  the  plaintiff 
ought  to  have  judgment  on  the  good  count,  and  not  on  the  other ;  in  short,  the 
court  should  look  at  the  whole  record,  and  see  what  is  the  proper  judgment 
to  give  upon  the  whole.  If  that  be  not  done,  considerable  difficulty  may  arise 
in  the  assessment  of  damages."  Parke,  B.,  in  Briscoe  v.  Hill,  10  M.  &  W, 
735,  740  (1842).  See,  also,  Slade  v.  Hawley,  13  M.  &  W,  757  (1845) ;  Cooke  v. 
Thornton,  6  Rand  (Va.)  8,  11,  15  (1827),  hardly  a  semble.     Accord. 

17  This  short  statement  is  substituted  for  the  official  report  of  the  case  upon 
the  demurrer. 


Ch.  3)  OBJECTIONS   TO    DEFECTS  535 

And  at  the  next  term  Rogers,  for  defendant,  obtained  a  rule  to 
show  cause  why  that  inquisition  should  not  be  set  aside. 

On  the  hearing  of  this  rule  it  was  objected  that  the  inquisition  ought 
to  have  been  taken  at  bar,  and  that  the  party  had  no  right  to  take  it 
in  vacation,  though  it  was  admitted  that  the  practice  had  been  to  take 
either  course. 

The  Court  said  that  the  19th  section  of  the  act  for  establishing 
courts  had  never  been  considered  as  taking  away  the  common-law 
remedy  by  inquisition,  but  as  affording  an  additional. remedy  by  mo- 
tion for  an  order  in  the  nature  of  a  writ  of  inquiry  to  assess  the 
damages  at  bar.    It  is  at  the  option  of  the  party  to  take  either  remedy. 

But  the  defendant's  counsel  also  objected  that  the  judgment  did  not 
authorize  the  inquisition,  that  being  a  judgment  on  a  special  demurrer; 
that  it  was  not  final. 

Per  Curiam.  The  general  rule  is  that  a  judgment  rendered  on  a 
demurrer  follows  the  nature  of  the  pleading  demurred  to ;  the  judg- 
ment on  a  demurrer  to  a  plea  in  -abatement,  if  for  the  defendant,  is 
that  the  writ  be  quashed ;  if  for  the  plaintiff,  that  the  defendant  an- 
swer over;  and  thus  the  form  of  the  judgment  corresponds  to  that 
of  the  prayer  of  judgment  in  the  demurrer.    Gould,  PI.  §  41,  c.  9. 

When  a  demurrer  is  joined  on  any  pleadings  in  chief,  as  on  the 
declaration,  plea  in  bar,  or  other  pleading  which  goes  to  the  action, 
the  judgment  is  final;  i.  e.,  if  for  the  plaintiff',  quod  recuperet;  if  for 
the  defendant,  quod  eat  sine  die.    Id.  §  42. 

In  this  case  the  demurrer  is  both  general  and  special.  It  concludes 
with  a  prayer  that,  "for  want  of  a  sufficient  declaration  in  this  behalf, 
the  said  George  Rhodes  prays  judgment,  and  that  the  said  William 
Silver  may  be  barred  from  having  or  maintaining  his  aforesaid  ac- 
tion against  him,"  etc. 

On  a  demurrer  to  the  declaration  the  judgment  for  plaintiff  cannot 
be  anything  else  than  quod  recuperet.  Such  demurrer  must  always 
go  to  the  cause  of  action ;  for  if  it  conclude  with  a  prayer  that  the 
plaintiff's  writ  be  quashed,  instead  of  a  prayer  in  bar,  the  plaintiff  may 
treat  it  as  a  prayer  for  judgment  in  bar;  and  if  it  be  found  for  him 
on  joinder  in  demurrer,  the  judgment  would  be  quod  recuperet. 
Gould,  PI.  477,  §  42. 

The  special  demurrer  is  also  a  general  demurrer. 

Rule  discharged.'^® 

18  "Upon  a  demurrer  to  a  plea  In  law,  or  to  any  other  pleading  in  chief, 
the  judguieut  is  tinal;  final,  I  mean,  not  a.s  coutradistinguislied  from  a  judg- 
ment interlocutory,  but  final,  as  it  is  conclusive  of  the  question  at  issue.  And 
in  this  sense  the  judgment  is  equally  final,  whether  it  be  for  the  plnintiff  or 
for  the  defendant,  or  for  or  against  the  demurrant.  Its  conclusive  effect  can- 
not be  avoided,  except  by  opening  or  avoiding  the  judgment.  *  *  *  It  is 
true  that  courts  may  and  do  permit  pleadings  to  be  amended  after  judgment 
upon  demurrer.  But  this  end  is  attained  either  by  not  permitting  the  rule 
for  judgment  to  be  entered,  or,  if  entered,  by  vacating  it,  or  by  treating  the 
pleading  and  the  judgments  upon  it  as  a  nullity,  and  in  theoi-j-  at  least,  if 
WIIIT.C.L.PL.— 35 


536  PRINCIPLES   OP   GENERAL   APPLICATION  (Part  3 

SECTION  2.— MOTIONS  TO  STRIKE 


WALPOLE  V.  COOPER. 

(Supreme  Court  of  Indiana,  1S44.     7  Blackf.  100.) 

Sullivan,  J.  Assumpsit  by  Cooper,  assignee  of  Preston  and  Meek, 
against  Walpole  on  a  promissory  note.  Pleas:  1.  Payment  to  as- 
signors before  the  assignment.  2.  Payment  of  50  dollars  part,  etc.,  to 
the  assignors,  etc.  3.  That  the  note  was  obtained  from  the  defendant 
by  the  assignors  by  fraud,  etc.  4.  Payment  to  the  assignors  in  man- 
ner following,  viz.,  that,  at  the  time  of  the  assignment,  they 
were  indebted  to  the  defendant  in  the  sum  of  175  dollars  for 
professional  services,  etc.  5.  That  at  the  time  of  making  said  promis- 
sory note,  the  assignors  agreed  to  receive  from  the  defendant  cash 
notes  in  satisfaction  and  discharge  of  the  same,  which  he  has  always 
been  ready  to  pay,  etc.  6.  Non  assumpsit.  The  plaintiff,  on  affidavit 
filed  stating  that  the  pleas  were  false,  vexatious,  and  intended  for  de- 
lay, moved  to  set  them  aside.  The  defendant  objected,  but  the  court 
set  aside  the  pleas,  and  gave  judgment  for  the  plaintiff. 

It  is  the  duty  of  a  court,  when  a  false  plea  is  filed  which  is  evi- 
dently intended  to  hinder,  perplex,  and  delay  the  case,  to  reject  it  on 
m.otion.  This  should  be  done  to  guard  the  administration  of  justice 
against  mockery  and  abuse.  In  the  performance  of  this  duty,  however, 
care  should  be  taken  that  the  courts  do  not  usurp  the  rights  of  an- 
other tribunal,  by  deciding  upon  the  truth  or  falsity  of  matters  of 
fact.^''  There  are  qases  reported  in  which  the  courts  have  set  aside 
pleas  apparently  good  upon  their  face,  upon  an  affidavit  that  they 
were  false  and  vexatious.  The  case  of  Richley  v.  Proone,  1  B.  &  C. 
286,  is  of  that  kind.  But  those  cases  are  discountenanced  by  later  de- 
cisions, and  the  rule  seems  now  to  be  that,  if  there  be  nothing  improper 
on  the  face  of  the  plea,  and  it  be  relevant,  a  motion  to  reject  it  on 
account  of  its  falsity,  or  to  sign  judgment  as  for  want  of  plea,  will 
be  overruled.-**     Merrington  v.  Becket,  2  B.  &  C.  81 ;    Smith  et  al.  v. 

not  in  fact,  strilcins  it  from  the  record."  Green,  0.  J.,  in  Hale  v.  Lawrence, 
22  N.  ,T.  Law,  72,  SO,  SI  (1849).  See,  also.  White  v.  Lew,  93  Ala.  484,  487, 
9  South.  164  (1S90)  ;  Pettys  v.  Marsh.  24  Fla.  44,  46,  3  South.  577  (1888) : 
Weiss  V.  Binnian,  178  111.  241,  245,  52  N.  E.  969  (1899) ;  Bagley  v.  Johnston, 
4  Rich.  (S.  C.)  22,  23  (1850). 

Error  in  sustaining  a  demurrer  is  waived  by  amending.  6  Ency.  PI.  &  Pr. 
359.  Eri-or  in  overruling  a  demurrer  is  usually  waived  by  pleading  over.  6 
Ency.  PI.  &  Pr.  364. 

19  Striking  or  disregarding  a  sham  plea  does  not  constitute  a  denial  of  trial 
by  ,iury  as  guaranteed  hv  the  state  constitutions.  White  v.  Calhoun,  83  Ohio 
St.  401,  94  N,  E.  743  (1911) ;   Coykendall  v.  Robinson,  39  N.  J.  Law,  98  (1876.) 

20  But  if  the  plea  appears  by  the  record  or  on  its  face  to  be  false,  it  may  be 
stricken  or  judgment  may  be  signed  as  for  want  of  a  plea.     Blewitt  v.  Mars- 


I 


Ch.  3)  OBJECTIONS   TO    DEFECTS  537 

Backwell,  4  Bing.  512;  1  Blackf.  347,  note  (1).  An  application  to  re- 
ject a  plea,  founded  on  an  affidavit  that  it  is  false,  must,  in  general, 
be  met  by  an  affidavit  of  the  defendant  that  the  plea  is  true.  The  ef- 
fect, therefore,  of  listening  to  such  applications  is  to  require  pleas 
to  be  verified  by  affidavit,  v^hich,  according  to  the  statute,  may  be 
pleaded  without  oath. 

Some  of  the  pleas  in  this  case  are  clearly  defective,  others  are  well 
pleaded.  As  the  case  must  be  reversed,  we  will  leave  the  plaintiff 
to  his  demurrer  to  the  defective  pleas,  and  allow  him  to  take  issue  on 
those  well  pleaded. 

Per  Curiam.  The  judgment  is  reversed  with  costs.  Cause  re- 
manded, etc.-^ 


SHOTWELL'S  EX'RS  v.  DENNIS. 

(Supreme  Court  of  New  Jersey,  1834.  14  N.  J.  Law,  501.) 
Hornblowe;r,  C.  J.-^  This  is  an  action  of  debt  on  a  bond.  The 
defendants  have  pleaded,  first,  non  est  factum,  and,  secondly,  that  the 
bond  was  given  upon  a  corrupt  and  usurious  contract.  The  plaintiff 
moves  to  strike  out  the  second  plea,  not  because  usury  is  not  a  legal 
bar,  but  because  the  defence  set  up  is  not  well  pleaded.  It  is  objected 
that  the  plea  does  not  allege  or  specify  any  of  the  particulars  of  the 
contract,  nor  the  sum  to  be  forborne,  nor  the  sum  to  be  paid  for  such 
forbearance,  and  that  the  plea  is,  in  other  respects,  uncertain,  etc. 

These  may  be  very  sufficient  and  fatal  objections  to  the  plea,  on  a 
demurrer;  but  the  counsel  for  the  plaintiffs  have  referred  us  to  no 
case  in  which  the  court  has  gone  so  far  as  to  settle  the  legal  accuracy 
of  a  special  plea  in  bar,  upon  a  mere  motion  to  strike  out  the  plea. 
Where  it  is  plainly  frivolous  and  trifling,  or  where  the  subject-matter 
of  the  plea,  although  accurately  and  technically  set  forth,  according 
to  the  soundest  rules  of  special  pleading,  is  no  answer  to  the  declara- 
tion, or  excluded  by  a  positive  rule  of  law,  it  may,  no  doubt,  be  strick- 
en out.  Anonymous,  7  N.  J.  Law,  160;  Stadholme,  Ex'r,  v.  Hodgson, 
2  T.  R.  390.  In  the  case  of  Westervelt  v.  Merenus,  3  N.  J.  Law,  693, 
the  defendant,  after  pleading  title,  and  giving  bond  in  the  court  for 
the  trial  of  small  causes,  put  in,  to  an  action  brought  in  this  court  for 
the  same  trespass,  the  plea  of  not  guilty ;  and  it  was  stricken  out.     In 

den,  10  East  237  (ISOS) :  Vere  v.  Carden,  5  Bin^:.  413  (1829) :  Henderson  v. 
Reed.  1  Blackf.  (Ind.)  347,  and  note  (182.5) :  20  Ency.  PI.  &  Pr.  4 ;  31  Cyc.  624. 
"If  a  plea  contain  very  improbable  matter,  and  the  frame  of  it  is  subtle 
and  intricate,  so  as  to  lead  to  the  inference  that  it  is  pleaded  for  a  dilatory 
purpose,  the  court  will  on  motion,  sui>ported  by  affidftvit  of  its  falsehood,  allow 
judgment  to  be  signed  as  for  want  of  plea,  and  make  the  defendant  or  his  at- 
torney pay  the  costs."  Stephen,  Pleading  (Williston's  Ed.)  *48i).  See  to  the 
same  effect  20  Ency.  PI.  &  Pr.  4,  and  eases  cited. 

21  For  cases  in  accord,  in  addition  to  those  cited  in  the  opinion,  see  20  Ency. 
PI.  &  Pr.  5. 

22  Tlie  statement  of  facts  is  omitted. 


538  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

Coryell  v.  Croxall,  5  N.  J,  Law,  764,  the  plea  of  payment  to  the  payee 
■of  the  note,  before  notice  of  the  endorsement  to  the  plaintiff,  was 
struck  out,  because  the  note  was  payable  without  defalcation  or  dis- 
count. So  in  The  Inhabitants  of  the  Township  of  North  Brunswick 
V.  Booraem  et  al.,  10  N.  J.  Law,  257,  the  defendant  pleaded  that  the 
action  was  not  prosecuted  by  the  plaintiffs  on  record,  but  by  a  third 
person.  The  plea  was  struck  out,  because  the  facts  set  forth  were  not 
the  subject-matter  of  a  plea.  But  in  the  case  before  us  the  defendant 
sets  up  usury,  which,  if  well  pleaded  and  true,  is  not  only  a  lawful 
plea,  but  a  good  defence  to  the  action.  Whether  it  be  a  formal  and 
good  plea  of  usury  is  not  necessary  to  be  considered  now.  The  plain- 
tiffs are  at  liberty  to  demur  to  it;  and  then  the  defendants  may  apply, 
if  they  think  proper,  for  leave  to  amend.  Thelluson  v.  Smith,  5  T.  R. 
152.  If  a  plea  in  bar  is  not  adapted  to  the  nature  of  the  action,  or 
conformable  to  the  count,  as  if  nil  debet  be  pleaded  to  an  action  of 
assumpsit,  as  was  done  in  Stafford  v.  Little,  Barnes'  Notes,  257,  the 
plaintiff  may  treat  it  as  a  nullity,  and  sign  judgment,  or  move  to  set  it 
aside.  But  if  the  defence  is  a  good  one,  though  badly  pleaded,  the 
plaintiff  must  demur. 

Ford,  J.,  concurred. 

Ryerson,  J.,  expressed  no  opinion,  having  been  of  counsel  with  one 
of  the  parties  before  his  appointment. 

Motion  denied. ^^ 


SECTION  3.— OBJECTION  TO  EVIDENCE 


ADAMS  V.  WAY. 
(Supreme  Court  of  Errors  of  Connecticut,  1S64.     32  Conn.  160.) 

Covenant  on  a  guaranty.  Tried  in  the  superior  court  on  the  general 
issue.-* 

Dutton,  J.  On  the  trial  of  this  case  to  the  court,  the  plaintiff 
in  the  first  place  oft'ered  in  evidence  the  original  guaranty  executed  by 
the  defendant,  and  which  is  set  out  in  full  in  the  declaration.  To  this 
the  defendant  objected,  on  the  ground  that  there  was  a  fatal  variance 
between  it  and  the  declaration.  The  particular  ground  of  variance  is 
not  pointed  out,  but  on  the  hearing  before  us  it  was  claimed  to  be  that 
the  debt  specified  in  the  instrument  was  payable  in  three  years,  while 
the  debt  alleged  to  be  secured  by  the  mortgage  was  payable  in  three 
years  or  whenever  there  should  be  a  failure  to  pay  the  interest  semi- 

2  3  For  numerous  cases  in  accord  as  to  the  rislit  to  strike  or  disregard  frivo- 
lous pleadings  and  as  to  what  constitutes  frivolousness,  see  20  Ency.  PI.  &  Pr. 
18-21;    31  Cyc.  600-012. 

2  4  The  statement  of  the  case  and  portions  of  the  opinion  are  omitted. 


Ch.  3)  OBJECTIONS    TO    DEFECTS  539 

annually.     The  court  below  excluded  the  evidence.    We  think  this  de- 
cision was  erroneous. 

The  regular  course  of  pleading  requires  that  the  plaintiff  should 
in  his  declaration  state  his  case;  that  is,  he  should  allege  the  facts  on 
which  he  claims  a  legal  right  to  recover.  The  defendant  may  then  de- 
mur, that  is,  deny  the  legal  sufficiency  of  these  facts,  or  deny  the  facts 
themselves,  or  confess  and  avoid  them.  These  are  distinct  grounds 
of  defense,  and  ought  not  to  be  mingled  or  confounded.  If  he  denies 
the  facts  alleged  in  the  declaration,  he  waives  for  the  time  being  the 
question  of  their  sufficiency  in  law.  He  cannot  on  the  trial  of  this 
issue  take  the  ground  that  the  facts  if  true  constitute  no  ground  of 
action.  If  he  wishes  to  take  that  ground  he  should  demur,  or  reserve 
to  himself  the  right  to  do  it  by  motion  in  arrest  or  writ  of  error.  The 
simple  question  to  be  tried  on  the  general  issue  is  whether  the  ma- 
terial facts  alleged  in  the  declaration  are  true.  By  "material"  in  this 
connection  is  not  meant  of  legal  sufficiency,  but  whether  they  consti- 
tute a  part  of  the  plaintiff's  case^  as  he  presents  it.  Whether  that  case 
will  sustain  in  law  an  action  or  not  cannot  be  considered  on  a  trial  to 
the  jury.  If  a  plaintiff,  either  through  his  own  folly,  or  the  ignorance 
of  his  counsel,  should  sue  a  defendant  in  slander  for  calling  him  a 
rascal,  and  if  the  defendant,  unwilling  to  admit  that  he  has  been  guilty 
even  of  an  insult,  should  deny  the  speaking  of  the  words,  the  court 
would  be  bound  to  take  a  verdict  of  the  jury  on  that  question,  and 
could  not  exclude  the  evidence  as  constituting  no  ground  of  action. 
If  the  jury  should  find  for  the  plaintiff",  the  defendant  could  then  ren- 
der the  verdict  ineffectual  by'  a  motion  in  arrest  or  a  writ  of  error. 
Any  other  course  would  mar  the  logical  symmetry  of  common-law 
pleadings.  If  it  should  be  asked.  Can  a  plaintiff  prove  any  fact  that 
he  sees  fit  to  allege  ?  we  answer,  clearly  not.  The  facts  which  he  has 
a  right  to  prove  must  be  pertinent  to  his  case.  Matters  that  are  im- 
pertinent or  mere  surplusage  he  will  have  no  right  to  prove  although 
alleged.  If  the  plaintiff  should  aver  that  he  was  a  native  of  a  par- 
ticular place,  or  fifty  years  old,  or  a  white  man,  or  that  the  defendant 
was  a  foreigner,  or  a  colored  man,  or  a  burglar,  he  would  have  no 
right  to  prove  these  allegations,  because  they  could  not  under  any  sup- 
posable  circumstances  add  anything  to  any  case  which  he  might  pre- 
sent. If  such  averments  are  scandalous,  the  court  would  on  motion 
order  them  to  be  stricken  from  the  declaration.  If  thev  are  merely 
impertinent  and  immaterial,  the  court  would  on  objection  made  or 
of  its  own  accord  refuse  to  hear  the  evidence  to  prove  them,  as  tend- 
ing to  mislead  the  jury,  and  taking  up  the  time  of  the  court  for  no 
valuable  purpose.  In  the  present  case  there  was  no  variance  between 
the  evidence  and  the  allegations  in  the  declaration.  It  corresponded 
exactly  with  that  part  of  it  to  support  which  it  was  offered.  The  real 
objection,  if  tliere  was  any,  was  not  to  the  proof,  but  to  the  plaintiff's 
case  as  proved.  The  defendant  claims  that  the  evidence  shows  that 
the  plaintiff  took  a  mortgage,  different  from  that  which  he  guaranteed. 


540  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

and  that  therefore  he,  especially  as  he  was  a  surety,  was  not  bound  by 
the  guaranty.  If  that  was  so,  it  is  apparent  on  the  face  of  the  declara- 
tion, and  the  objection  should  have  been  taken,  not  to  the  evidence,  but 
either  by  demurrer,  or,  as  the  case  was  tried  to  the  court,  by  objecting 
to  a  judgment  in  favor  of  the  plaintiff  on  the  facts  alleged  and  proved. 

The  rule  that  the  plaintiff  may  on  the  general  issue  prove  all  the 
material  allegations  contained  in  the  declaration,  and  that  if  these  are 
insufficient  in  law  to  sustain  the  case  the  objection  must  be  taken  by 
demurrer  or  some  similar  mode,  and  not  by  objection  to  the  evidence, 
is  fully  sustained  by  the  authorities.-^  1  Swift  Dig.  737;  1  Greenl. 
Ev.  §  51.  In  Canterbury  v.  Bennett,  22  Conn.  623,  the  defendant,  on 
a  trial  upon  the  general  issue,  asked  the  superior  court  to  charge  the 
jury  that,  if  all  the  facts  set  forth  in  the  declaration  should  be  found 
by  them  to  be  true,  they  constituted  in  law  no  reason  why  the  plaintiff 
should  recover,  and  that  their  verdict  must  be  for  the  defendant.  But 
the  court  refused  so  to  charge,  and  this  court  refused  to  grant  a  new 
trial,  upon  the  ground  that  the  proper  mode  of  taking  advantage  of 
such  a  defect  in  the  declaration  is  by  a  demurrer,  a  motion  in  arrest 
or  a  writ  of  error.  If  the  court  could  not  direct  the  jury  to  disregard 
the  evidence  on  the  ground  that  it  would  not  constitute  a  cause  of  ac- 
tion, it  is  clear  that  it  could  not  exclude  the  evidence  for  the  same 
cause. 

No  case  has  been  cited  which  when  carefully  scrutinized  would  lead 
to  a  different  result.     *     *     * 

Although  the  plaintiff  is  entitled  to  a  new  trial  for  the  rejection  of 
the  testimony,  he  does  not  claim  it  if  the  court  are  satisfied  from  what 
appears  in  the  case  that  it  would  be  of  no  avail  to  him.  We  are  not 
satisfied  that  this  would  be  the  result.  We  are  not  clear  that,  if  the 
objection  made  by  the  defendant  could  have  been  properly  taken,  it 
would  have  prevailed.  There  are  several  expressions  in  the  instru- 
ment given  by  the  defendant,  from  which  it  may  perhaps  be  inferred 
that  it  was  drawn  up  with  reference  to  the  mortgage  in  question,  as  a 
document  already  prepared  and  agreed  to  by  the  defendant.     *     *     * 

We  therefore  advise  a  new  trial. 

In  this  opinion  the  other  Judges  concurred,  except  Park,  J.,  who 
dissented. 

25  Swift  &  Co.  V.  Rutkowsld,  182  111.  18.  54  N.  E.  1038  (1899) ;  Rothschild 
V.  Bruscke,  131  111.  265,  23  N.  E.  419  (1890) ;  Corey  v.  Bath,  35  N.  H.  530,  543 
(1857),  semble;  Potts  v.  Clarke,  20  N.  J.  Law,  536,  540  (1S4.5),  semble;  Cun- 
niuffham  v.  Herndon,  2  Call  (Va.)  530  (1801) ;  Reynolds  y.  Hurst,  IS  W.  Va. 
648,  653  (1881),  semble.  Accord.  Stoflet  v.  Marker,  34  Mich.  313  (1876) ;  Steele 
V.  Western  Inland  Lock  Nay.  Co.,  2  Johns.  (N.  Y.)  283  (1807),  semble ;  Kenyon 
V.  Cameron,  17  R.  I,  122,  20  Atl.  233  (1890).     Contra. 


Ch.  3)  OBJECTIONS   TO    DEFECTS  541 

SECTION  4.— NONSUIT 


SADLER  V.  ROBINS. 

(Court  of  King's  Bench,  180S.     1  Campb.  253.) 

Assumpsit  on  a  decree  of  the  high  Court  of  Chancery  in  the  island 
of  Jamaica.  The  declaration  stated  that  on  the  16th  day  of  July,  1805, 
in  a  certain  cause,  wherein  James  Sadler  and  others  were  complain- 
ants, and  James  Robins  and  others,  executors  of  John  Sadler,  deceas- 
ed, were  defendants,  it  was  by  the  said  high  Court  of  Chancery  or- 
dered, adjudged  and  decreed  that  the  said  James  Robins  and  one  R. 
Haywood,  since  deceased,  should,  on  or  before  the  first  day  of  Janu- 
ary then  next  ensuing,  pay  unto  the  said  James  Sadler,  or  his  lawful 
attorney  or  attorneys  in  the  said  island,  the  sum  of  £3,670.  Is.  91/4^. 
current  money  of  the  said  island,  with  interest  thereon  from  the  31st 
day  of  December  then  last  past,  first  deducting  thereout  the  full  costs 
of  the  said  defendants  expended  in  the  said  suit,  the  same  to  be  taxed 
by  George  Howell,  Esq.,  one  of  the  masters  of  the  said  court,  and 
also  deducting  thereout  all  and  every  further  payment  or  payments 
which  the  said  James  Sadler  and  R.  Haywood,  or  either  of  them  might, 
on  or  before  the  said  1st  day  of  January,  1806,  shew  to  the  satisfac- 
tion of  the  said  George  Howell  that  they  or  either  of  them  had  paid 
on  account  of  their  said  testat9r's  estate.  The  declaration  having  then 
stated  a  liability  and  promise  in  the  words  of  the  decree,  and  the 
amount  of  the  sum  to  be  paid  in  sterling  money  with  interest,  went  on 
to  aver  that  the  said  James  Robins  and  R.  Haywood  did  not,  nor  did 
either  of  them,  on  or  before  the  1st  day  of  January,  1806,  or  at  any 
subsequent  time,  cause  the  costs  by  the  said  defendants  in  the  said 
cause  in  the  said  Court  of  Chancery  expended  in  that  suit  to  be  taxed 
by  the  said  George  Howell,  Esq.,  or  by  any  other  of  the  masters  of  the 
said  court  of  Chancery,  but  as  well  the  said  James  Robins  and  R.  Hay- 
wood, in  the  lifetime  of  the  said  R.  Haywood,  as  the  said  James  Rob- 
ins since  the  death  of  the  said  R.  Haywood,  have  altogether  neglected 
and  refused  so  to  do,  nor  did  the  said  James  Robins,  and  R.  Haywood, 
in  the  lifetime  of  the  said  R.  Haywood,  on  or  before  the  said  1st  day 
of  January,  1806,  shew  to  the  satisfaction  of  the  said  George  Howell, 
or  any  other  master  of  the  said  court,  that  they  or  either  of  them  had 
paid  on  account  of  the  said  testator's  estate  any  sum  or  sums  of  money 
whatsoever.  Breach,  for  nonpayment  of  the  said  sum  of  .£3,670.  Is. 
9i4d.  current  money,  with  interest  due  thereOn,  as  mentioned  in  the 
decree.    Plea,  the  general  issue. 

The  Attorney  General  having  opened  the  plaintiff's  case. 

Lord  ElIwEnborough  ^"^  expressed  himself  of  opinion  that  the  action 

20  Portions  of  tlie  report  of  tlie  ease  are  omitted. 


542  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

was  not  maintainable,  as  it  did  not  appear  what  sum  was  actually  due 
to  the  plaintiff  according  to  the  terms  of  the  decree.     *     *     * 

The  Attorney  General  then  urged  strenuously  that  the  objection  was 
upon  the  record,  and  that  if  it  was  well  founded,  judgment  might  be 
arrested. 

Lord  EllEnborough.  If  there  is  evidently  no  consideration  to 
raise  a  promise,  so  that  the  action  cannot  be  supported,  why  should  the 
defendant  be  put  to  move  in  arrest  of  judgment?  The  plaintiff  ought 
not  to  have  brought  his  action  here,  while  the  decree  was  in  an  incom- 
plete state.  The  case  we  had  at  the  sittings  after  last  term  shews  with 
what  facility  these  decrees  and  judgments  in  the  West  India  islands 
are  obtained;  and  they  ought  to  be  examined  with  some  strictness  be- 
fore they  are  put  in  force  in  this  country.  In  many  other  cases,  when 
it  is  clear  the  action  will  not  lie,  although  the  objection  appears  on  the. 
record,  and  might  be  taken  advantage  of  by  motion  in  arrest  of  judg- 
ment, or  by  writ  of  error,  judges  are  in  the  habit  of  directing  a  non- 
suit. 

The  plaintiff  was  then  called. 

The  Attorney  General,  in  the  following  term,  obtained  a  rule  to 
shew  cause  why  this  nonsuit  should  not  be  set  aside ;  but  cause  being 
shewn,  the  judges  were  unanimously  of  opinion  that  it  ought  to  stand.^^ 


SECTION  5.— ARREST  OK  JUDGMENT 


BEDELL  V.  STEVENS. 

(Superior  Court  of  Judicature  of  New  Hampstiire,  1853.  •  28  N.  H.  118.) 

Case,  on  a  warranty.  The  declaration  was  as  follows :  "In  a  plea 
of  the  case,  for  that  the  said  Abraham  Bedell,  Jr.,  heretofore,  to  wit, 
on  the  first  day  of  August,  A.  D.  1851,  at  said  Lancaster,  by  request 
of  the  said  Calvin  P.  Stevens,  purchased  of  him  a  note,  signed  by  Al- 
fred Carlton,  and  made  payable  to  one  A.  V.  Stevens,  or  bearer,  in 
the  sum  of  fifty-five  dollars  and  fifty-nine  cents,  on  demand,  with 
use,  and  that  the  said  Calvin  P.  Stevens  affirmed  the  said  Carlton  was 
a  person  in  good  credit,  when,  in  fact,  he  was  poor,  and  the  note  of 
no  value.    And  so  the  said  Abraham  Bedell,  Jr.,  says  that  he,  the  said 

2  7  Van  Vechten  v.  Graves,  4  Johns.  (N.  Y.)  403  (1809),  contra.  "Formerly 
in  England,  when  a  plaintiff  voluntarily  abandoned  his  suit,  a  nonsuit  was 
granted,  but  this  could  not  be  done  against  his  consent.  9  Enc.  Law  of  Eng. 
ISO.  At  a  later  time  it  seems  that  a  nonsuit  could  be  properly  granted  at 
nisi  prius  when  it  was  clear  in  point  of  law  that  the  action  was  not  maintain- 
able, and  this,  too,  although  the  objection  appeared  on  the  face  of  the  record 
and  might  have  been  taken  advantage  of  by  motion  in  arrest  of  .iudgment. 
Tidd's  Pr.  (3d  Am.  Ed.)  *867,  citing  [Sadler  v.  Robbins]  1  Campb.  2.56  [1808] ; 
[Ward  V.  Mason].  9  Price,  294-296  [1821]."  Cobb,  J.,  in  Kelly  v.  Strouse,  IIG 
Ga.  872,  881,  43  S.  E.  280  (1902). 


Cb.  3)  OBJECTIONS    TO    DEFECTS  543 

Calvin  P.  Stevens,  has  deceived  and  defrauded  him  to  the  damage  of 
the  said  Abraham  Bedell,  Jr.,  as  he  says,  the  sum  of  one  hundred  dol- 
lars." 

On  the  trial  the  court  instructed  the  jury  that  the  plaintiff  must 
prove  that  the  defendant's  representations  in  respect  to  the  signer  of 
the  note  in  question  were  fraudulent. 

A  verdict  was  returned  for  the  plaintiff,  and  the  defendant  moved 
in  arrest  of  judgment,  because  of  the  insufficiency  of  the  declaration. 

The  plaintiff  opposed  the  motion,  but  asked,  in  case  the  declaration 
should  be  held  insufficient,  that  an  amendment  may  be  granted  with- 
out setting  aside  the  verdict. 

The  questions  arising  upon  the  case  were  transferred  to  this  court 
•for  determination, 

Eastman,  J.-^  A  verdict  having  been  returned  for  the  plaintiff 
in  this  case,  and  it  being  quite  apparent  from  the  finding  of  the  jury, 
under  the  instructions  of  the  court  upon  the  trial,  that  the  plaintiff  has 
a  cause  of  action  against  the  de-fendant,  we  have  endeavored  to  find 
some  good  reason  by  which  we  could  arrive  at  the  conclusion  that  the 
motion  for  the  arrest  of  judgment  should  not  be  granted.^^  But  this 
we  have  been  unable  to  do. 

Judgments  are  arrested  only  for  intrinsic  causes,  such  as  are  appar- 
ent upon  the  record. ^°  Formal  defects  and  errors  are  cured  by  stat- 
ute, and  are  harmless  except  upon  special  demurrer.  Substantial  de- 
fects also,  such  as  would  be  bad  on  general  demurrer,^^  are  not  unfre- 
quently  cured  by  verdict.  If  the  plaintiff  obtains  a  verdict,  and  it  is 
found  that  his  declaration  is  faulty  in  omitting  some  particular  fact  or 

28  A  portion  of  the  opinion  is  omitted. 

20  "Such  motions  are  not  favored.  In  considering  tliem,  courts  liberally  con- 
strue the  pleadings,  giving  the  plaintiff  the  benetit  of  every  implication  that 
can  be  drawn  therefrom  in  his  favor.  Sentences  and  paragraphs  may  be 
transposed.  The  allegations  in  one  part  of  the  complaint  may  be  aided  by 
those  in  another,  and  if,  taken  together,  they  show  the  existence  of  facts  con- 
stituting a  good  cause  of  action,  defectively  set  forth  or  improperly  arranged, 
the  motion  in  aiTest  will  be  denied."  Lamar,  J.,  in  Baker  v.  Warner,  231 
U.  S.  5S8,  592,  34  Sup.  Ct.  175,  177,  58  L.  Ed.  384  (1913). 

30  For  numerous  cases  accord,  see  5  Ency.  L.  &  P.  .503 ;  2  Ency.  PI.  &  Pr. 
794;    23  Cyc.  824,  825.     But  see  Hamilton  v.  Pease,  38  Conn.  115  (1871). 

31  "After  the  court  has  deliberately  expressed  its  judgment  upon  demurrer, 
the  same  matter  is  never  allowed  to  be  urged  in  arrest  of  judgment."  Scott, 
J.,  in  Freeman  v.  Camden,  7  Mo.  298,  299  (1842),  quoted  with  approval  in 
Warren  v.  Badger,  255  Mo.  138,  140,  164  S.  W.  206  (1914) ;  Rouse  v.  County 
of  I'eoria,  7  111.  (2  Oilman)  99  (1845):  Reaveley  v.  Harris,  239  111.  526,  88 
N.  E.  238  (1909) ;  Davis  v.  Carroll,  71  Md.  568.  18  Atl.  965  (1889 :  by  statute) ; 
Ross  v.  Bank  of  Burlington,  1  Aikens  (Vt.)  43,  15  Am.  Dec.  6(>4  (1825):  White's 
Adm'x  V.  Central,  etc,  Co.,  87  Vt.  330,  89  Atl.  618  (1914),  semble ;  -  Edwards  v. 
Blunt,  1  Str.  425  (1721) ;  Cresswell  v.  Packham,  6  taunt.  630  (1816).  Accord. 
"It  is  said  that  the  court,  by  ruling  wrongly  on  a  demurrer,  does  not  preclude 
itself  from  afterwards  ruling  rightly  upon  a  motion  in  arrest  of  judgment." 
McAlister,  J.,  in  Turnpike  Co.  v.  Yates,  108  Tenn.  428,  4.30,  67  S.  W.  69  (1902) ; 
Griflin  v.  Justices,  17  Ga.  96  (18.55),  semble;  Field  v.  Slaughter,  1  Bibb  (Ky.) 
160  (1808):  Newman  v.  Perrill.  73  Ind.  153  (1880:  Code);  Frum  v.  Keeney, 
109  Iowa,  393,  80  N.  W.  507  (1S99:    by  statute).     Accord. 


544  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

circumstance  without  which  he  ought  not  to  have  judgment,  but  which 
is,  nevertheless,  imphed  in  or  inferable  from  the  finding  of  those  facts 
which  are  expressly  alleged  and  found,  the  declaration  is  aided  (be- 
cause the  omission  is  supplied)  by  the  verdict.  The  court,  in  such  case, 
must  presume  that  the  fact  or  circumstance  omitted  was  proved  to  the 
jury.  1  Saund.  228,  a.  n.  1 ;  Cro.  Jac.  44;  Carth.  304.  See,  also,  Se- 
wall's  Falls  Bridge  v.  Fisk  &  Norcross,  23  N.  H.  171,  where  many 
American  authorities  are  collected. 

The  rule,  as  laid  down  by  Judge  Gould,  and  which  is  sustained  by 
numerous  authorities,  is  this:  When  the  statement  of  the  plaintiff's 
cause  of  action,  and  that  only,  is  defective  or  inaccurate,  the  defect  is 
cured  by  a  general  verdict  in  his  favor,  because  to  entitle  him  to  re- 
cover, all  circumstances  necessary,  in  form  or  substance,  to  complete 
the  title  so  imperfectly  stated,  must  be  proved  at  the  trial ;  and  it  is, 
therefore,  a  fair  presumption  that  they  were  proved.  But  where  no 
cause  of  action  is  stated,  the  omission  is  not  cured  by  verdict.  For  as 
no  right  of  action  was  necessary  to  be  proved,  or  could  have  been  le- 
gally proved  under  such  a  declaration,  there  can  be  no  ground  for  pre- 
suming that  it  was  proved  at  the  trial.  Gould's  PI.  497 ;  Doug.  683 ;  1 
Salk.  365 ;  3  Black.  Com.  395 ;  Bac.  Abr.  Verdict,  X. 

In  Walpole  v.  JMarlow,  2  N.  H.  385,  Richardson,  C.  J.,  states  the 
rule  thus :  If  the  title  stated  in  the  declaration  be  defective,  the  judg- 
ment must  be  arrested.  But  if  the  title  be  defectively  stated,  the  de- 
fect is  cured  by  verdict.  The  true  distinction  between  the  two  is  this : 
When  any  particular  fact  is  essential  to  the  validity  of  the  plaintiff's 
title,  if  such  fact  is  neither  expressly  stated  in  the  declaration,  nor 
necessarily  implied  from  the  facts  which  are  stated,  the  title  must  be 
considered  as  defective,  and  judgment  must  be  arrested;  but  if  such 
fact,  although  not  expressly  stated,  be  necessarily  injplied  from  what 
is  stated,  the  title  must  be  considered  as  only  defectively  stated,  and 
the  defect  is  cured  by  verdict. 

As  the  court  must  judge,  in  motions  of  this  kind,  from  the  record, 
and  that  only,  and  not  from  what  took  place  at  the  trial,  it  will  pre- 
sume, after  verdict,  that  everything  was  proved  which  the  averments 
stated  in  the  declaration  will  warrant.  But  they  can  presume  nothing 
more.  They  cannot  presume  that  a  cause  of  action  is  proved  where 
none  is  stated  ;  and  where  a  material  fact  is  omitted,  which  cannot  be 
implied  in  or  inferred  from  the  finding  of  those  Vv'hich  are  stated,  the 
verdict  will  not  cover  the  defect.  Bac.  Abr.  Verdict,  X;  Com.  Dig. 
PI.  c.  87;  1  Salk.  364;  7  Term,  351,  n.  1. 

To  apply  these  principles  to  the  case  under  consideration:  The 
plaintiff  alleges  that  his  declaration  is  case  upon  a  warranty.  But  in 
what  part  of  it  do  we  find  the  warranty?  In  none,  surely,  unless  we 
construe  the  word  "affirmed"  to  be  the  same  as  "warranted."  But 
this  cannot  be  done.  There  is  a  marked  difference  between  an  affirma- 
tion and  a  warranty.  An  affirmation  is  a  matter  strongly  stated ;  a 
warranty  is  a  promise  or  contract,  a  security  or  guaranty.     To  affirm 


Ch.  3)  OBJECTIONS   TO    DEFECTS  545 

is  to  state  a  thing  positively;  to  warrant  is  to  insure,  indemnify,  to 
guaranty.  It  is  true  that  there  is  no  particular  form  of  words  neces- 
-sary  to  constitute  a  warranty,  and  that  if  the  vendor,  in  a  sale  of  chat- 
tels, makes  any  assertion  or  affirmation  respecting  the  kind,  quality  or 
condition  of  the  article  upon  which  he  intends  the  vendee  should  rely 
as  a  fact,  and  upon  which  he  does  rely,  that  is  a  warranty.  Morrill 
V.  Wallace  &  a.  9  N.  H.  111.  But  what  a  jury  may  be  at  liberty  to 
find  to  be  a  warranty  is  not  an  averment  of  a  warranty.  And  we  ap- 
prehend that  the  difficulty  into  which  counsel  has  fallen,  in  drawing 
this  declaration,  arose  from  its  having  been  done  in  haste,  and  from 
not  considering,  at  the  moment,  the  proper  distinction  to  be  made  be- 
tween what  may  be  evidence  of  a  warranty  and  the  averment  itself. 
The  averment  should  be  distinct,  while  in  proving  it  no  particular  form 
of  words  is  necessary  to  be  shown.  But  it  is  clear  that  an  affirmation 
merely  is  not  a  warranty,  and  there  is  no  averment  of  warranty  in  the 
declaration. 

The  statements  in  the  declaration  might  have  been  submitted  to  a 
jury,  from  which,  perhaps,  tbey  would  have  found  that  the  defendant 
made  an  affirmation  in  regard  to  the  solvency  of  Carlton,  which  he  in- 
tended the  plaintiff  should  rely  upon  as  a  fact,  and  which  he  did  rely 
upon;  and  thus  much  having  been  proved,  the  jury  would  have  found 
a -warranty,  had  the  declaration  contained  the  necessary  averment. 

But,  as  the  matter  now  stands,  the  most  that  we  can  infer  from  the 
verdict  is  that  the  jury  found  that  the  defendant  affirmed  Carlton  to  be 
a  person  of  good  credit,  which  was,  in  fact,  untrue.  And  it  has  been 
repeatedly  decided  that  a  false 'affirmation,  in  regard  to  the  credit  of  a 
person,  is  no  cause  of  action ;  that  it  must  be  fraudulent  as  well  as 
false.  Lord  v.  Colby,  6  N.  H.  99,  25  Am.  Dec.  445;  Haycraft  v. 
Creasy,  2  East,  92 ;  Hamar  v.  Alexander,  5  B.  &  P.  241 ;  Gallager  v. 
Brunei,  6  Cow.  (N.  Y.)  346;  Barney  v.  Dewey,  13  Johns.  (N.  Y.)  224, 
7  Am.  Dec.  372;  Pasley  v.  Freeman,  3  D.  &  E.  51 ;  Bean  v.  Bean,  12 
Mass.  20. 

It  is  evident,  then,  that  this  declaration  must  be  bad.  The  validity 
of  the  plaintiff's  title  depended  upon  the  warranty,  and  that  is  not 
stated ;  neither  can  it  be  implied  from  the  facts  which  are  stated.  Be- 
cause the  defendant  affirmed  that  Carlton  was  a  person  in  good  credit, 
and  that  was  not  true,  w^e  cannot  infer  that  the  jury  found  that  he 
warranted  Carlton  to  be  a  person  in  good  credit.  The  plaintiff  has  un- 
doubtedly taken  the  only  ground,  in  regard  to  his  declaration,  that  he 
could  stand  upon.  It  is  clearly  bad  in  assumpsit,  for  there  is  no  alle- 
gation of  any  promise  or  undertaking,  nor  any  consideration,  stated 
with  distinctness.  It  is  bad  in  case  for  deceit,  for  there  is  no  aver- 
ment of  a  scienter. 

By  amendment  the  declaration  could  very  easily  be  made  good,  ei- 
ther in  assumpsit  or  case.  An  averment  of  a  consideration  and  prom- 
ise would  make  it  good  in  assumpsit ;  and  an  allegation  of  a  scienter 
would  make  it  equally  good  in  case.    But,  as  it  stands,  it  is  neither  the 


546  PRINCIPLES   OF   GENERAL  ArPLICATION  (Part  3 

one  thing  nor  the  other.  It  is,  in  fact,  a  defective  declaration  in  case 
for  a  false  affirmation.  It  lacks  the  allegation  of  fraud.  So  the  court 
below  viewed  it  upon  the  trial,  as  we  infer  from  their  instructions  to 
the  jury,  and  it  is  clearly  bad  until- amended.     *     *     * 

Holding  the  declaration  to  be  insufficient,  the  judgment  must  be  ar- 
rested.    But  the  plaintiff  may  have  leave  to  move  the  common  pleas  f! 
to  amend  the  declaration ;  upon  what  terms  that  court  will  decide 
should  they  grant  the  motion. 

Judgment  arrested.^^ 


CITY  OF  ELGIN  v.  THOMPSON. 

(Appellate  Court  of  Illinois,  1901.     9S  111.  App,  358.) 

DiBELL,  P.  J.  ®^  Ethel  Magnus,  between  fourteen  and  fifteen  years 
of  age,  was  driving  her  father's  horse  and  buggy  in  the  city  of  Elgin, 
on  Sunday  afternoon,  July  1,  1900,  and  had  with  her  Kate  Thompson, 
nineteen  years  of  age.  A  steam  roller  stood  on  the  west  side  of  South 
Liberty  street  just  south  of  Chicago  street.  As  they  approached  it 
the  horse  took  fright  at  the  roller,  turned  around  quickly,  tipped  over 
the  buggy  and  ran.  Miss  Thompson  was  injured  and  brought  this 
suit  against  the  city  of  Elgin  to  recover  damages  therefor.  The  dec- 
laration contained  two  counts.  Defendant  pleaded  not  guilty,  and 
there  was  a  jury  trial.  At  the  close  of  plaintiff's  evidence  defendant 
moved  to  exclude  the  testimony  and  presented  an  instruction  to  find 
defendant  not  guilty.  The  court  denied  the  motion  and  refused  the 
instructions,  and  defendant  excepted.  The  same  course  was  pursued 
at  the  close  of  all  the  evidence.  The  jury  awarded  plaintiff  $175. 
Motions  for  a  new  trial  and  in  arrest  of  judgment  were  made  by  de- 
fendant and  denied,  and  plaintiff  had  judgment  on  the  verdict.  De- 
fendant appeals.     *     *     * 

The  allegations  of  the  declaration  were  meager.  While  the  first 
count  said  the  city  negligently  permitted  the  roller  to  remain  in  South 
Liberty  street  near  the  beaten  driveway  several  days,  "to  the  annoy- 
ance, discomfort  and  danger  of  the  -public  driving  along  and  upon 
said  street,"  and  that  when  the  horse  drawing  plaintiff'  approached  the 
roller  he  became  frightened  and  unmanageable  and  ran  away,  etc., 
it  did  not  in  express  terms  say  the  roller  was  calculated  to  frighten 
horses  or  did  frighten  the  horse  drawing  plaintiff,  nor  that  the  city 
should  have  known  or  did  know  it  was  calculated  to  frighten  horses 
in  time  so  it  could  have  removed  it  before  said  injury.  The  second 
charged  the  roller  was  "of  large  dimensions  and  unusual  appearance," 
and  that  it  frightened  the  horse  drawing  plaintiff,  etc.,  but  did  not 
directly  charge  that  the  roller  was  calculated  to  frighten  horses,  nor 

32  For  cases  accord,  see  5  Eiicy.  L.  &  P.  51G,  note  10 ;  2  Ency.  PI.  &  Pr.. 
799,  note  2 ;   23  Cyc.  827,  note  22. 

33  A  portion  of  the  opinion  is  omitted. 


Ch.  3)  OBJECTIONS   TO    DEFECTS  547 

that  the  city  had  notice.  The  declaration  was  not  questioned  by  de- 
murrer. After  verdict  the  rule  is,  where  there  is  a  defect  or  omission 
in  a  pleading,  in  form  or  substance,  which  would  have  been  fatal 
on  demurrer,  yet  if  the  issue  joined  is  such  as  necessarily  requires 
proof  of  the  facts  defectively  stated,  or  omitted,  without  which  it  can- 
not be  presumed  that  the  judge  would  direct  or  the  jury  would  give 
a  verdict,  such  defect,  imperfection  or  omission  is  cured  by  the  ver- 
dict. Twin  City  Gas  Works  v.  People,  156  111.  387,  40  N.  E.  950; 
Cribben  v.  Callaghan,  156  111.  549,  41  N.  E.  178.  In  B.  &  O.  S.  W.  Ry. 
Co.  V.  Then,  159  111.  535,  42  N.  E.  971,  the  necessary  averment  that 
deceased  was  in  the  exercise  of  due  care  was  not  contained  in  the 
declaration.  It  was  held  that  after  the  verdict  the  declaration  was 
good.  In  City  of  East  Dubuque  v.  Burhyte,  173  111.  553,  50  N.  E. 
1077,  it  was  said  that  if  certain  counts  were  defective  in  not  averring 
notice  to  the  city  they  were  good  after  verdict.  In  Gerke  v.  Fancher, 
158  111.  375,  41  N.  E.  982,  it  was  held  that  if  the  necessary  matter  is 
averred  argumentatively,  or  may.be  inferred  from  the  language  used 
in  the  declaration,  it  will  be  good  after  verdict.  In  the  present  case 
we  conclude  the  declaration  sufficient  after  verdict. 

Finding  no  reversible  error  in  the  record  as  presented  to  us  for  de- 
cision, the  judgment  is  affirmed.^* 


POSNETT  V.  MARBLE. 

(Supreme  Court  of  Vermont,  1SS9.     G2  Yt.  481.  20  Atl.  813,  11  L.  R.  A.  162.  22 

Am.  St.  Rep.  126.) 

This  was  an  action  for  slander.  Plea,  the  general  issue  with  no- 
tice of  special  matter  in  justification.  Trial  by  jury  at  the  September 
term,  1888,  Washington  county,  Tyler  J.,  presiding.  Verdict  and 
judgment  for  the  plaintiff.    Exceptions  by  the  defendant. 

The  defendant  also  moved  in  arrest  of  judgment  for  the  insufficien- 
cy of  the  declaration.    This  consisted  of  five  counts  which  alleged  the 

34  For  numerous  cases  applying  the  same  rule  see  22  Ency.  PL  &  Pr.  939- 
944 ;   31  Cyc.  764,  note  13.     See,  also,  1  Wins.  Saunder.s,  227,  note  1. 

"The  rule  is,  as  laid  down  by  Lord  Mansfield,  that  where  the  plaintiff  has 
stated  his  title  or  ground  of  action  defectively  or  inaccurately,  it  is  a  fair  pre- 
sumption, after  verdict,  that  it  was  proved  at  the  trial ;  but  where  the  plain- 
tiff totally  omit  to  state  his  title  or  cause  of  action,  it  need  not  be  proved  at 
the  trial,  and  therefore  there  is  no  room  for  presumption.  The  rule  is  fjnnil- 
iar;  the  only  difficulty  is  in  the  application  of  it."  Wilde,  J.,  in  Read  v. 
Chelmsford,  16  Pick.  (Mass.)  128,  130  (1834). 

"When  there  has  been  a  trial  on  an  issue  .joined  before  a  magistrate,  his 
decision  in  favor  of  the  plaintiff  must  be  considered  as  evidence  equivalent 
to  the  verdict  of  a  jury,  that  the  plaintiff  was  entitled  to  recover  upon  the 
testimony  introduced.  And  in  such  eases  the  defect  or  omission  in  the  dec- 
laration is  cured  as  well  by  the  judgment  of  the  magistrate  as  by  the  verdict 
of  a  jury."     Shepley,  J.,  in  Emerson  v.  Lakin,  23  Me.  384,  386  (1844). 


548  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

speaking  of  different  words,  to  different  persons,  at  different  times 
and  places. ^^ 

MuNSON,  J.  *  *  *  The  several  counts  purport  to  be  for  words 
spoken  upon  different  occasions.  A  general  verdict  was  rendered  upon 
all  the  counts.  The  second,  third,  and  fifth  counts  are  held  to  be  in- 
sufficient, and  the  court  has  no  means  of  determining  upon  which 
counts  the  damages  were  in  fact  assessed. 

This  being  the  situation,  what  disposition  shall  be  made  of  the  case  ? 
The  courts  are  not  agreed  as  to  the  procedure.  One  course  is  to  end 
the  suit  by  arresting  the  judgment.^®  Another  course  is  to  award  a 
venire  de  novo.  In  Haselton  v.  Weare,  8  Vt.  480,  the  court  arrested 
the  judgment,  saying  that  this  was  in  accordance  with  the  settled  rule 
in  England.  The  court  had  before  it  English  cases  in  which  this 
course  had  been  taken,  but  the  English  practice  up  to  that  time  was 
far  from  uniform,  and  the  other  method  has  since  prevailed.  One  of 
the  cases  relied  upon  by  the  court  in  Haselton  v.  Weare  was  Holt  v. 
Scholefield,  6  Term  R.  691.  But  this  case  was  expressly  overruled  by 
Leach  v.  Thomas,  2  Mees.  &  W.  427,  soon  after  Haselton  v.  Weare  was 
decided.  In  Leach  v.  Thomas,  it  was  said  that  this  point  did  not  ap- 
pear to  have  been  at  all  argued  in  Holt  v.  Scholefield ;  and,  in  Corner 
V.  Shew,  4  Mees.  &  W.  162,  Parke,  B.,  in  stating  that  the  point  had 
been  considered  doubtful  before  the  decision  of  Leach  v.  Thomas, 
expressed  surprise  that  such  a  doubt  should  have  existed,  inasmuch 
as  the  matter  had  been  provided  for  by  rules  of  court,  in  both  the 
king's  bench  and  the  common  pleas,  as  early  as  1654.  In  Empson  v. 
Griffin,  11  Adol.  &  E.  186,  the  court  of  queen's  bench  followed  the  de- 
cision in  Leach  v.  Thomas,  and  awarded  a  venire  de  novo. 

The  rule  adopted  in  Haselton  v.  Weare  has  never  been  cordially 
approved.  In  Wood  v.  Scott,  13  Vt.  42,  the  court  considered  the  ques- 
tion settled,  but  Redfield,  J.,  referred,  with  evident  sympathy,  to  the 
regret  expressed  by  Lord  Mansfield  in  Peake  v.  Oldham,  Cowp.  275, 
that  such  a  rule  had  been  established.  In  Camp  v.  Barker,  21  Vt.  469, 
and  Whitcomb  v.  Wolcott,  Id.  368,  the  court  vigorously  criticised  the 
rule,  and  indicated  its  intention  to  make  all  reasonable  intendments  in 
favor  of  a  verdict  when  some  of  the  counts  were  good.  In  the  latter 
case,  the  court  referred  to  the  modern  English  practice  of  awarding  a 

35  The  statement  of  the  case  is  abbreviated.  Tlie  portion  of  the  opinion 
overruling  all  the  exceptions,  and  holding  the  second,  third,  and  fifth  counts 
insufficient,  is  omitted. 

ac  In  addition  to  the  cases  cited  in  the  opinion,  see  Bank  v.  Hopkins,  1  T. 
B.  Mon.  (Ky.)  245,  1.5  Am.  Dee.  113  (1824),  semble ;  Cloush  v.  Tenney,  5  Me. 
(5  Greenl.)  446  (1828);  Kingsley  v.  Bill.  9  Mass.  IDS  (1812);  Peabody  v. 
Kingsley,  40  N.  H.  418  (18G0),  semble ;  Maxfield  v.  Johnson,  2  Ohio,  204  (1825), 
semble.  Accord.  Hoag  v.  Hatch,  23  Conn.  585  (1855) ;  Nelson  v.  Emerson.  1 
Brev.  (S.  C.)  48,  2  Am.  Dec.  646  (1S02).  Contra.  See,  also,  5  Ency.  L.  &  P. 
526,  note  14,  for  collection  of  cases  under  statutes  forbidding  arrest  of  judg- 
ment under  such  circumstances. 

If  the  several  counts  are  for  the  same  cause  of  action,  judgment  will  not  bo 
arrested.     Smith  v.  Cleveland,  6  Mete.  (Mass.)  332  (1843). 


Ch.  3)  OBJECTIONS   TO    DEFECTS  549 

venire  de  novo  where  it  could  be  done,  as  the  true  course,  but  con- 
sidered that  this  could  not  well  be  done  in  a  court  of  error.  In  Joy  v. 
Hill,  36  Vt.  333,  the  motion  in  arrest  was  disposed  of  on  the  ground 
of  a  misjoinder  of  counts,  the  question  whether  the  expressions  in 
more  recent  cases  had  abrogated  the  law,  as  declared  in  Wood  v.  Scott, 
being  recognized  but  not  considered.  In  1865,  the  difficulty  was  re- 
moved by  statute  as  far  as  declarations  containing  only  counts  for 
the  same  cause  of  action  are  concerned.  R.  L.  §  913.  In  Dunham  v. 
Powers,  42  Vt.  1,  and  in  Kimmis  v.  Stiles,  44  Vt.  351  (decided  since 
this  enactment),  the  counts  not  being  for  the  same  cause  of  action,  it 
was  considered  that  judgment  should  be  arrested. 

In  view  of  the  misapprehension  under  which  the  rule  was  adopted, 
the  position  afterwards  taken  in  regard  to  it,  and  the  modern  vin- 
dication in  the  English  courts  of  the  earlier  and  better  practice,  we  are 
inclined  to  extend  the  benefit  of  a  new  trial  to  cases  like  this.  Upon 
a  mistrial  of  this  character,  w^e  think  the  law  may  conveniently  and 
properly  give  the  litigants  a  more  substantial  justice  than  is  afforded 
by  an  arrest  of  judgment.  That  the  proposed  action  may  properly 
be  taken  by  this  court  is  apparent  from  the  settled  practice  of  many 
courts  of  error.  The  nature  of  the  proceeding  is  fully  stated  in  Corner 
V.  Shew%  above  cited.  The  theory  is  that  the  defect  is  in  the  verdict. 
The  order  is  made,  in  the  language  of  the  ancient  rule,  "as  upon  an  ill 
verdict."  By  sending  back  the  case  an  opportunity  is  given  to  have 
the  damages  assessed  upon  the  good  counts  only.  The  plaintiff  will 
also  be  entitled  to  the  usual  privileges  of  amendment,  under  the  rules 
of  the  trial  court.     *     *     *  st 


BULL  V.  MATHEWS. 

(Supreme  Court  of  Rhode  Island,  1S97.     20  R.  I.  100,  37  Atl.  536.) 

Trespass  on  the  case  for  trover  and  conversion,  joining  counts  in  as- 
sumpsit.    Heard  on  defendant's  motion  in  arrest  of  judgment. 

TiLLiNGHAST,  J.  This  is  a  motion  in  arrest  of  judgment,  on  the 
ground  of  a  misjoinder  of  causes  of  action.  The  action  is  trespass  on 
the  case  for  trover  and  conversion,  and  the  declaration  contains  a 
count  in  trover  and  conversion  and  also  the  ordinary  counts  in  assump- 
sit. At  the  trial  of  the  case  in  the  district  court  a  decision  was  rendered 
in  favor  of  the  plaintiff  for  $19.10  and  costs,  but  there  is  nothing  in  the 
record  to  show  whether  the  judgment  was  based  on  the  count  in  trov- 
er and  conversion  or  on  those  in  assumpsit.  No  plea  was  filed  in  the 
case,  but,  as  the  defendant  entered  an  appearance,  the  general  issue 
is  deemed  to  be  filed.  Gen.  Laws  R.  I.  c.  237,  §  3.  But  whether,  in 
this  case,  the  general  issue  as  to  the  count  in  trover,  which  would  be 

37  Hopkins  v.  Beedle,  1  Caines  (N.  Y.)  347,  2  Am.  Dec.  391  (1803),  seuable. 
Accord. 


550  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

not  guilty,  or  as  to  the  counts  in  assumpsit,  which  would  be  non  as- 
sumpsit, is  in,  we  have  no  means  of  determining.  Within  five  days 
after  the  rendition  of  said  decision  the  defendant  filed  his  motion  in 
arrest  of  judgment  in  the  district  court,  whereupon  the  case  was  certi- 
fied to  this  court. 

It  is  a  familiar  rule  of  common-law  pleading  that  counts  sounding 
in  tort  cannot  properly  be  joined  with  counts  sounding  in  contract,  and 
also  that  such  misjoinder  is  fatal,  not  only  on  demurrer,  but  also  on 
motion  in  arrest  of  judgment.  2  Enc.  PI.  &  Prac,  p.  803,  and  cases 
cited;  Haskell  v.  Bowen,  44  Vt.  579.  The  effect  of  such  misjoinder 
is  clearly  expressed  in  Chit.  PI.  (9th  Am.  Ed.)  206,  as  follows :  "The 
consequences  of  a  misjoinder  are  more  important  than  the  circum- 
stances of  a  particular  count  being  defective ;  for,  in  case  of  a  mis- 
joinder, however  perfect  the  counts  may  respectively  be  in  themselves, 
the  declaration  will  be  bad  on  demurrer,  or  in  arrest  of  judgment, 
or  upon  error."    See,  also,  Gould,  PL  c.  4,  §  87,  and  cases  cited. 

The  ordinary  test  for  determining  whether  different  causes  of  ac- 
tion may  be  joined  is  to  inquire  whether  the  same  plea  may  be  plead- 
ed and  the  same  judgment  given  on  all  the  counts  of  the  declaration, 
and  unless  this  question  can  be  answered  in  the  affirmative  the  counts 
cannot  be  joined.  See  Drury  v.  Merrill,  20  R.  I.  2,  36  Atl.  835.  See, 
also.  Court  of  Probate  v.  Sprague,  3  R.  I.  205. 

Applying  this  test  to  the  case  at  bar,  it  will  at  once  be  seen  that 
there  is  a  fatal  misjoinder.  If  the  pleader  in  this  case  had  simply 
omitted  to  strike  out  the  money  counts  which  are  printed  in  the  writ, 
perhaps  we  might  disregard  them ;  but,  as  he  has  filled  them  out  in 
the  ordinary  way  where  the  case  is  assumpsit,  we  feel  bound  to  pre- 
sume that  he  intended  to  rely  thereon,  as  well  as  on  the  count  in  trover. 

It  is  true  that,  since  the  case  was  certified  to  this  court,  the  plain- 
tiff's counsel  has  filed  an  affidavit  setting  forth  that  by  reason  of  mis- 
take and  oversight  he  neglected  to  strike  out  the  money  counts,  and 
also  that  at  the  trial  in  the  district  court  the  evidence  introduced  was 
confined  to  the  count  in  trover,  which  was  the  only  count  relied  on.  But, 
as  a  motion  in  arrest  of  judgment  raises  only  those  objections  which  are 
apparent  upon  the  record  (State  v.  Paul,  5  R.  I.  189 ;  1  Black,  Judgm. 
§§  96-98),  and  as  the  affidavit  forms  no  part  of  the  record,  we  are  not 
at  liberty  to  consider  it. 

Judgment  arrested.^^ 

3  8  For  many  cases  accord  see  5  Enc.v.  L.  &  P.  529,  notes  22  and  23 ;  23  Cyc. 
829,  note  31.  See.  also,  Rowley  v.  Shepardson.  83  Vt.  167,  74  Atl.  1002,  138 
Am.  St.  Rep.  1078  (1910:  venire  de  novo  awarded).  A  fortiori  such  misjoinder 
is  not  cured  by  a  default  judgment.  Whipple  v.  Fuller,  11  Conn.  582,  29  Am. 
Dee.  330  (1836) ;    Hooker  v.  Quilter,  1  Wils.  171  (1747). 


Ch.  3)  OBJECTIONS   TO    DEFECTS  551 

SAVIGNAC  V.  ROOME. 
(Court  of  King's  Bench,  1794.     6  Term  R.  125.) 

The  declaration  in  this  case  began  thus :  The  plaintiff  complains  of 
the  defendant,  etc.,  of  a  plea  of  trespass  on  the  case,  for  that  where- 
as the  plaintiff,  on,  etc.,  at,  etc.,  was  possessed  of  a  horse  and  chaise, 
which  he  was  then  and  there  driving  on  the  highway,  etc.,  and  that 
the  defendant  was  possessed  of  a  certain  coach,  and  two  horses  draw- 
ing the  same,  etc.,  which  said  coach  and  horses  were  then  under  the 
care,  government,  and  direction  of  a  certain  then  servant  of  him  the 
said  defendant,  who  was  then  driving  the  same  in  and  along  the  high- 
way aforesaid,  etc.,  nevertheless  the  defendant  by  his  said  servant 
then  and  there  in  the  highway  aforesaid  willfully  drove  the  said  coach 
and  horses  of  the  said  defendant  upon  and  against  the  said  chaise  of 
the  said  plaintiff,  and  then  and  there  pulled,  forced,  and  dragged  the 
same  between  and  against  the  said  coach  of  the  said  defendant  and 
a  certain  other  coach  there,  whereby  the  plaintiff's  chaise  became  and 
was  crushed,  broken,  and  damaged,  etc.  The  defendant  pleaded  the 
general  issue,  and  on  the  trial  the  plaintiff  obtained  a  verdict. 

Lord  KSNYON,  C.  J.  It  is  of  importance  that  the  boundaries  be- 
tween the  different  actions  should  be  preserved,  and  particularly  in 
cases  of  this  kind;  for  if  in  an  action  of  trespass  the  plaintiff'  recover 
less  .than  40  s.,  he  is  entitled  to  no  more  costs  than  damages ;  where- 
as a  verdict  with  nominal  damages  only  in  an  action  on  the  case 
carries  all  the  costs.  Here  the  whole  frame  and  structure  of  the  dec- 
laration shew  that  this  is  an  action  on  the  case ;  the  memorandum, 
which  we  were  desirous  of  seeing,  is  of  "an  action  of  trespass  on  the 
case."  But  in  reality  it  should  have  been  trespass.  And  the  Stat.  16 
and  17  Car.  2,  was  never  meant  to  apply  to  a  case  of  this  kind.  This 
is  as  much  the  cause  of  an  action  of  trespass  as  if  the  servant  had 
given  the  plaintiff"  a  blow,  because  the  injury  was  immediate.  This 
falls  directly  with  the  principle  of  the  case  we  so  lately  decided  (Day  v. 
Edwards,  ante,  vol.  5,  648) ;  and  therefore  the  judgment  must  be  ar- 
rested. 

AsHHURST,  J.  It  appears  from  the  frame  of  tlie  declaration,  and 
independently  of  the  memorandum,  to  be  an  action  on  the  case.  And 
if  it  were  in  its  inception  an  action  of  trespass  on  the  case,  the  plain- 
tiff cannot  afterwards  convert  it  into  an  action  of  trespass  by  means 
of  the  statute  of  Charles  the  Second.  That  is  a  very  beneficial  act; 
but  it  never  meant  to  confound  the  boundaries  of  actions,  and  to  en- 
able the  plaintiff  to  call  his  action  what  he  pjeased  at  first  in  order 
to  meet  the  evidence  at  the  trial,  and  afterwards  to  say  it  was  intend- 
ed to  be  a  different  kind  of  action.  That  act  says  that  if  in  an  action 
of  trespass,  which  the  plaintiff"  describes  in  his  declaration  as  an  ac- 
tion of  trespass,  he  happen  to  omit  the  words  "vi  et  armis"  or  "contra 
Wiiit.C.L.Pl.— 36 


552  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  S 

pacem,"  the  want  of  those  words  shall  not  vitiate  the  declaration.    But 
where  the  action  itself  is  misconceived,  the  act  of  parliament  was  never 
intended  to  cure  such  an  objection.^^ 
Rule  absolute.**^ 


SECTION  6.— JUDGMENT  NOTWITHSTANDING  VERDICT 


PLUNKETT  V.  DETROIT  ELECTRIC  RY.  CO. 

(Supreme  Court  of  Michigan,  1905.     140  Mich.  299,  103  N.  W.  620.) 

Case  by  Matthew  Plunkett  against  the  Detroit  Electric  Railway- 
Company  for  personal  injuries.  There  was  judgment  for  defendant 
notwithstanding  a  verdict  for  plaintiff,  and  plaintiff  brings  error.  Re- 
versed. 

Montgomery,  J.  Plaintiff,  a  city  fireman,  was  pipeman  on  a  hose 
truck,  which  was  proceeding  west  on  High  street  at  7:45  p.  m.,  Feb- 
ruary 2,  1900,  when  it  was  struck  at  Hastings  street  by  a  north-bound 
Hastings  street  car  belonging  to  defendant.  Plaintiff  was  thrown  and 
injured.  Plaintiff  brought  this  action  to  recover  for  the  injuries  sus- 
tained, and  on  the  trial  under  a  charge  submitting  the  question  of  de- 
fendant's negligence,  and  that  of  the  contributory  negligence  of  the 
plaintiff  to  the  jury,  a  verdict  was  rendered  in  favor  of  the  plaintiff 
for  $2,500.  Defendant  thereupon  entered  a  motion  for  judgment  in  its 
favor  non  obstante  veredicto,  for  the  reasons : 

First.  For  that  under  the  evidence  given  in  said  cause  a  verdict 
should  have  been  directed  by  the  court  in  favor  of  the  defendant  at 
the  conclusion  of  the  trial  thereof. 

Second.  For  that  this  court  charged  said  jury,  in  substance  and  ef- 
fect, that  the  said  plaintiff,  by  and  through  the  persons  with  whom  he 
was  riding,  was  guilty  of  contributory  negligence. 

This  motion  was  granted,  and  judgment  non  obstante  veredicto  was 
entered  for  defendant.     Plaintiff  brings  error. 

The  defendant  and  the  court  below  mistook  the  practice.  At  the 
common  law,  judgment  non  obstante  veredicto  could  be  entered  only 
when  the  plea  confessed  the  cause  of  action  and  set  up  matters  in 
avoidance  which  were  insufficient,  although  found  true  to  constitute 

89  Tlie  concurring  opinion  of  Grose,  J.,  is  omitted.     Lawrence,  J.,  concurred. 

40  Slater  v.  Felilberg,  24  R.  I.  574,  54  Atl.  38,3  (1903),  semble;  Mies  v.  Brown, 
25  R.  I.  537,  56  Atl.  1030  (1904),  semble ;  Lindo  v.  Gardner,  1  Cranch.  (U.  S.) 
343,  2  L.  Ed.  130  (1S03).  Accord.  Cruikshank  v.  Brown,  5  Gilm.  (111.)  75 
(1848) ;  Toledo,  etc.,  Co.  v.  McLaughlin,  63  111.  389  (1872),  semble ;  Homan  v. 
Flemming,  51  111.  App.  572  (1891:  by  statute);  Googins  v.  Gilmore,  47  Me. 
9,  74  Am.  Dec.  472  (1859),  semble;  Welker  v.  Metcalf,  209  Pa.  373,  58  AtL 
687  (1904 :  pleading  over) ;  Carson  v.  Hood's  Ex'rs,  4  Dall.  (Pa.)  108,  1  L.  Ed. 
762  (1790 :   pleading  over).     Contra. 


I'll 


Ch.  3)  OBJECTIONS   TO    DEFECTS  553 

a  defense  or  bar  to  the  action.*^  The  rule  was  later  relaxed,  and  made 
to  apply  in  favor  of  the  defendant,  so  that  it  is  now  generally  held 
that  the  defendant  is  entitled  to  a  judgment  non  obstante  veredicta 
when  the  plaintiff's  pleadings  are  not  sufficient  to  support  a  judgment 
in  his  favor.*-  11  Enc.  Pi.  &  Pr.  912  et  seq.  So,  too,  if  there  be  both 
a  general  and  special  verdict,  and  the  latter  be  inconsistent  with  the 
former,  judgment  may,  in  some  cases,  be  based  upon  the  special  ver- 
dict, disregarding  the  general  verdict.  But  we  know  of  no  case  in 
which  it  is  proper  practice  to  enter  a  judgment  non  obstante  veredicto, 
unless  it  appears  on  the  record  that  the  verdict  of  the  jury  cannot  be 
supported  as  matter  of  law.  In  all  other  cases  the  proper  practice  is 
to  move  for  a  new  trial,  or  review  the  case  on  writ  of  error  and  ex- 
.  ceptions.  There  must  be  either  a  general  or  special  verdict  to  sup- 
port a  judgment,  or  the  pleadings  must  authorize  its  entry.  This 
question  is  ruled  bv  Central  Savings  Bank  v.  O'Connor,  132  Mich.  578, 
94  N.  W.  11,  102  Am.  St.  Rep.  433.  See,  also,  Schmid  v.  Frankfort, 
134  Mich.  619,  96  N.  W.  1056,  and  Montmorency  Co.  v.  Putnam,  135 
Mich.  Ill,  97  N.  W.  399.  Counsel  for  appellant  has  presented  the 
case  upon  the  assumption  that  the  circuit  court  had  power  to  consider 
the  question  which  he  assumed  to  pass  upon,  and  has  pointed  out  that 
the  court  mistook  the  rule  as  to  imputed  negligence,  and  that  his  hold- 
ing is  at  variance  with  the  ruling  of  this  court  in  McKernan  v.  De- 
troit Citizens'  St.  Ry.,  138  Mich.  519,  101  N.  W.  812,  68  L.  R.  A.  347. 

Defendant's  counsel  contend  that  there  are  other  reasons  why  the 
verdict  should  have  been  for  the  defendant.  We  must  decline  to  enter 
upon  a  consideration  of  these  questions. 

The  judgment  is  reversed,  and  the  case  will  be  remanded,  that  the 
plaintiff  may  move  for  judgment  on  the  verdict.  Plaintiff'  will  recover 
costs. 

41  "In  later  cases  the  motion  has  also  been  allowed  not  only  where  the 
defendant  by  an  affirmative  plea  confesses  but  does  not  avoid  the'  declaration, 
but  also  where  liesides  an  immaterial  traverse  the  defendant  pleads  material 
pleas  and  loses  the  issues  taken  on  them.  (Joodhurne  v.  Bowman,  0  Bins:. 
'>:VJ.  (18.33) ;  Plummer  v.  Lee,  2  Mees.  &  W.  495  (1837) ;  Negelen  v.  Mitchell, 
7  Mees.  &  W.  612  (1841) ;  Gregory  v.  Brunswick,  3  C.  B.  481  (1846) ;  Crossfield 
V.  Morrison,  7  C.  B.  286  (1849) ;  Cook  v.  Pearce,  8  Q.  B.  1(U4  (1&43) ;  Conling: 
V.  Coxe,  6  Dowl  &  L.  309  (1848).  But  where  the  only  pleas  are  immaterial 
traverses  a  repleader  is  awarded.  Atkinson  v.  Davies,  11  M.  &  W.  236  (1S43) ; 
Duke  of  Rutland  v.  Bagshawe,  19  L.  J.  Q.  B.  2.34  (1850)."  Stephen,  Pleading 
(Williston's  Ed.)  *108,  note  Im. 

42  "When  the  plaintiff  has  the  verdict,  the  defendant  may  move  in  an-est 
of  judgment,  but  not  for  judgment  non  obstante  veredicto.  That  is  a  motion 
which  comes  from  the  plaintiff  when  the  defendant  has  the  verdict."  Brousou, 
J.,  in  Bellows  v.  Shannon.  2  Hill  (X.  Y.)  86  (1841).  Buckingham  v.  McCracken, 
2  Ohio  St.  287  (18.53) ;  Tillinghast  v.  McLeod,  17  R..I.  208,  21  Atl.'  345  (1891), 
semble ;  Bowdre  v.  Hampton,  6  Rich.  (S.  C.)  208  (1853) ;  Bradley  Fertilizer 
Co.  V.  Caswell,  65  Vt.  231.  26  Atl.  0.56  (1893),  disapproving  Hackett  v.  Hewitt, 
57  Vt.  442.  52  Am.  Rep.  132  (1885).  Accord.  But  see  Tvler  v.  Flanders,  58  N. 
H.  371  (1878) ;  Frank  v.  Gump,  104  Va.  306,  51  S.  E.  ,358  (1905) ;  14  Am.  Law 
Rev.  499.  See.  also,  remarks  of  Parke,  B.,  to  counsel  in  argument  in  Queen 
V.  Darlington  Free  Granmiar  School,  6  A.  &  E.  (N.  S.)  682,  703-705  (1844). 


554  PRINCIPLES  OF  GENERAL  APPLICATION  (Part  3 

OTIS  V.  HITCHCOCK. 

(Supreme  Court  of  New  York,  1831.     6  Wend.  433.) 

Case  of  repleader.  The  defendant,  in  an  action  of  assumpsit  on  a 
promissory  note,  pleaded  non  assumpsit  and  an  insolvent  discharge, 
exempting  him  from  imprisonment.  The  plaintiff  joined  issue  upon 
the  first  plea,  and  denied  the  granting  of  the  discharge.  The  cause  was 
tried,  and  the  jury  found  for  the  plaintiff  on  the  first  plea,  and  for  the 
defendant  on  the  second.  The  plaintiff  now  moved  for  a  general  judg- 
ment non  obstante  veredicto,  on  the  ground  that  the  second  plea  does 
not  allege  that  the  defendant  was  an  inhabitant  of  the  county  where 
the  officer  resided  to  whom  the  petition  for  his  discharge  was  pre- 
sented, or  that  he  was  imprisoned  in  such  county.  1  Rev.  Laws,  463, 
§  6;  Laws  of  1819,  p.  117,  §  4.  The  defendant  insisted  that  a  repleader 
should  be  awarded. 

By  the  Court,  Marcy,  J.  The  plea  setting  forth  the  discharge  is 
substantially  defective.  It  does  not  set  forth  enough  to  show  that  the 
officer  granting  it  had  jurisdiction.  It  does  not  aver  that  the  defend- 
ant was  imprisoned  in  or  a  resident  of  Ontario  county,  when  he  made 
his  application  to  the  first  judge  thereof  for  his  discharge.  Is  this  a 
case  for  a  repleader,  or  shall  a  general  judgment  be  given  for  the 
plaintiff,  notwithstanding  the  verdict  for  the  defendant,  on  the  issue 
formed  by  this  plea?  Where  a  plea  is  good  in  form,  but  not  in  fact, 
or,  in  other  words,  if  it  contain  a  defective  title  or  ground  of  defence, 
by  which  it  is  apparent  to  the  court,  upon  the  defendant's  own  show- 
ing, that  in  any  way  of  putting  it  he  can  have  no  merits,  and  the  issue 
joined  thereon  be  found  for  him,  there,  as  the  awarding  the  repleader 
could  not  mend-  the  case,  the  court  will  at  once  give  judgment  non  ob- 
stante veredicto ;  but  where  the  defect  is  not  in  the  title,  but  in  the 
manner  of  serving  it,  and  the  issue  joined  thereon  is  immaterial,  so 
that  the  court  know  not  for  whom  to  give  judgment,  there  they  will 
award  a  repleader.  A  judgment  non  obstante  veredicto  is  always  on 
the  merits  ;  a  repleader,  upon  the  form  and  manner  of  pleading.  Tidd's 
Pr.  8v^0,  1.  The  cases  referred  to  by  Mr.  Tidd  clearly  illustrate  the  dis- 
tinction pointed  out  by  him.  Lord  Mansfield  says :  "Where  a  finding 
upon  an  issue  does  not  determine  the  right,  the  court  ought  to  award 
a  repleader,  unless  it  appear  from  the  whole  record  that  no  manner 
of  pleading  the  matter  could  have  availed."  Rex  v.  Phillips,  1  Burr. 
301.  Lord  Holt,  in  Staples  v.  Heyden,  2  Ld.  Raym.  924,  took  this 
distinction:  Where  the  defendant  confesses  a  trespass,  and  avoids  it 
by  such  a  matter  as  can  never  be  made  good  by  any  sort  of  plea,  judg- 
ment shall  be  given  upon  the  confession,  without  regard  to  such  an  im- 
material issue;  but  where  the  matter  of  the  justification  is  such  as,  if 
well  pleaded,  would  be  a  good  justification,  there,  though  it  be  ill 
pleaded,  that  shall  not  be  taken  to  be  a  confession  of  the  plaintiff's  ac- 
tion. 


Ch.  3)  OBJECTIONS   TO    DEFECTS  555 

Let  us  apply  the  doctrine  of  these  cases  to  the  one  before  us.  We 
cannot  say  the  defect  is  in  the  matter  of  the  defence  set  forth  in  the 
second  plea;  there  is  a  defect  in  the  form  of  pleading  the  matter,  in 
consequence  of  which  we  are  unable  to  say  with  whom  the  right  is. 
It  does  not  appear  whether  the  officer  who  granted  the  discharge  had 
jurisdiction  or  not;  and  the  issue,  therefore,  upon  the  fact  of  his 
having  granted  such  a  discharge,  is  immaterial.  It  determines  no  right, 
whether  found  for  the  one  party  or  the  other.  This  record  then  seems 
to  show  a  case  for  a  repleader.  We  cannot  say,  that  in  no  way  of 
pleading  the  defence  which  the  defendant  has  attempted  to  put  forth 
in  his  second  plea,  it  cannot  be  good.  We  can  see,  that  by  a  simple 
averment  that  the  defendant  was  an  actual  resident  of  Ontario  county 
when  he  presented  his  petition  to  Judge  Howell,  his  plea  would  be  a 
good  one;  and  there  is  nothing  in  the  facts  set  forth  by  him,  to  show 
that  he  cannot  consistently  with  truth  make  that  averment.  If  it  had 
appeared  aflirmatively  in  the  plea  that  the  defendant,  when  he  present- 
ed his  petition  to  the  first  judge  of  Ontario,  was  not  imprisoned  in  that 
county,  but  was  actually  an  inhabitant  of  Monroe  county,  the  plea 
would  have  shown  a  defective  defence.  The  discharge  not  only  might 
be,  but  of  necessity  must  be  in  such  a  case  void.  It  would  not,  by  a 
defect  in  the  form  of  the  plea,  have  left  it  a  matter  of  doubt  whether 
the  officer  had  jurisdiction  or  not;  but  it  would  have  appeared  posi- 
tively upon  the  face  of  the  plea,  perfect  in  its  form,  that  he  had  not 
jurisdiction.  Inasmuch  as  this  plea  does  not  show  that  the  discharge 
could  not  have  been  so  pleaded  as  to  be  available  as  a  defence,  this  is 
not  a  case  for  a  judgment  non  obstante  veredicto,  but  for  a  repleader. 

Where  a  repleader  is  av/arded,  neither  party  is  entitled  to  costs. 
Both  parties  are  considered  in  fault ;  the  defendant  for  putting  in  a  de- 
fective plea,  and  the  plaintiff  for  taking  issue  upon  it,  instead  of  de- 
murring.   2  Ventr.  196;  Sayer  on  Costs,  c.  11. 

Repleader  awarded.*^ 


SECTION  7.— ERROR 


MAKER  et  ux.  v.  ASHMEAD. 

(Supreme  Court  of  Pennsylvania,  1858.     30  Pa.  344,  72  Am,  Dec.  70S.) 

Certificate  from  the  Court  of  Nisi  Prius. 

Action   on   the   case    for   malicious   prosecution,    against   Ashmead 
and   Strong.     Verdict   for  plaintiff  against  both.      A  new   trial   was 

4  3  For  manj^  cases  applying  the  same  rule,  see  11  Ency.  PI.  &  Pr.  919,  note 
2,  920,  note  2 ;   23  Cyc.  7S0,  notes  2,  3,  4. 


-556  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

granted  Ashmead,  but  denied  Strong.  Strong  then  moved  in  arrest 
of  judgment.  The  court  overruled  this  motion  and  entered  judg- 
ment against  Strong;   which  was  here  assigned  for  error.** 

The  opinion  of  the  court  was  deHvered  by 

Porter,  J,  This  action  ought  to  have  been  trespass.  The  warrant 
was  not  a  nulUty  only,  but  an  absurdity.  It  charged  the  defendant 
"with  absconding,  or  about  to  abscond,  from  the  city,"  with  moneys 
belonging  to  a  certain  estate  "with  intent  to  defraud  heirs" — an  im- 
proper act,  but  not  obnoxious  to  the  criminal  law.  The  alderman 
could  do  nothing  but  discharge  the  party  arrested.  In  appealing  to 
the  court  for  redress  she  mistook  her  remedy.  Case  was  not  the 
proper  form  of  action.  The  arrest  was  not  an  abuse  of  lawful  pro- 
cess. It  was  an  act  committed  under  a  void  and  irregular  writ.  Every 
step  was  unlawful.  The  seizure  of  the  person  was  an  act  of  direct 
violence.  The  injury  was  no  more  consequential  than  if  caused  by 
a  blow  from  a  bludgeon.  On  turning  to  the  record,  we  find  the  sum- 
mons issued  in  case.  In  the  declaration,  the  defendants  are  required 
to  answer  to  a  plea  of  trespass  on  the  case.  From  every  count  the 
usual  words,  "force  and  arms,"  are  omitted.  In  several  counts,  the 
defendants  are  charged  with  having  falsely  and  maliciously  caused 
and  procured  the  plaintiff  to  be  arrested  by  her  body,  and  to  be  im- 
prisoned and  kept,  etc. ;  words  which  do  not  necessarily  imply  the  exer- 
tion of  force  on  the  part  of  the  defendants.  In  one  count,  a  conspiracy 
is  charged,  but  so  connected  with  the  procurement  and  service  of 
the  vicious  warrant,  as  to  form  but  an  entire  act.  These  allegations 
do  not  set  forth  a  trespass.  In  its  very  birth,  therefore,  the  action 
contracted  a  malady  liable  to  development  in  any  stage  of  its  life.  A 
demurrer,  or  application  for  a  nonsuit,  would  have  ended  it.  On  the 
motion  made  by  the  defendants  to  arrest  the  judgment,  it  should  have 
been  arrested,  for  the  defect  was  not  formal,  but  vital ;  not  curable, 
but  fatal.  It  presents  Itself  also  on  this  record,  for  the  terms  In  which 
the  warrant  is  set  out  show  it  to  have  been  wholly  irregular  and  void, 
and  capable,  therefore,  of  sustaining  no  other  remedy.  Where  the 
defect  appears  on  the  face  of  the  declaration,  it  is  settled  law  that  a 
court  of  error  is  bound  to  notice  it.  Having  thus  laid  the  axe  at  the 
root,  it  Is  unnecessary  to  enter  upon  the  minute  branches  of  the  case. 

Judgment  reversed.*^ 

*4  This  statement  is  substituted  for  that  found  iu  the  official  report. 

46  For  numerous  casts  in  accord  on  appeal  and  error,  see  3  C.  J.  786,  note  76. 

"Before  verdict  the  intendments  are  against  the  pleader,  and  upon  demurrer 
to  a  declaration  nothing  will  suffice,  by  way  of  inference  or  implication,  in  his 
favor.  But  on  motion  in  arrest  of  judgment — and  the  same  thing  is  true  where 
the  defect  is  sought  to  be  availed  of  on  error — the  court  will  intend  that 
every  material  fact  alleged  in  the  declaration,  or  fairly  and  reasonably  in- 
ferable from  what  is  alleged,  was  proved  at  the  trial,  and  if,  from  the  issue, 
the  fact  omitted  and  fairly  inferable  from  the  facts  stated  in  the  declaration 
may  fairly  be  presumed  to  have  been  pro\-ed,  the  judgment  will  not  be  ar- 


Ch.  3)  OBJECTIONS    TO    DEFECTS  557 

rested."  Bailey,  J.,  in  Gerke  v.  Fancher,  158  111.  375,  380.  41  N.  E.  982,  983 
(1895).  For  many  other  cases  reeosjiizing  and  applying  this  rule  on  appeal 
or  error,  see  3    G.  J.  779-785,  notes  37-67. 

"The  declaration  in  offset  is  defective  and  very  informal,  at  best,  when 
considered  under  our  statute  and  practice.  It  would  doubtless  have  been 
adjudged  bad  on  demurrer,  and  perhaps  on  a  motion  in  arrest.  But  the 
plaintiff  saw  fit  to  plead  the  general  issue  to  it,  and  did  not  move  in  arrest. 
Therefore  as  it  counts  upon  the  note  with  sufficient  certainty,  no  question  as 
to  its  sufficiency  in  other  respects  is  properly  before  this  court."  Royce,  J., 
in  Keyes  v.  Waters,  18  Vt.  479,  482. 

"No  objection  to  the  declaration  is  specified  in  the  notice  of  the  motion  to 
set  aside  the  judgment,  nor  in  the  motion  itself.  Had  defects  in  it  which 
would  render  it  bad  on  demurrer  been  specified  in  either,  it  may  be  that  such 
defects  would  be  available  here  now  for  reversing  the  action  of  the  court  be- 
low. Whether  the  declaration  would  be  good  on  demurrer,  we  are  not,  for 
this  reason,  called  upon  to  say.  It  suffices  that  it  purports  to  set  up  matter 
which,  if  well  pleaded,  would  constitute  a  good  cause  of  action."  Poffen- 
barger,  J.,  in  Talbott  v.  Southern  Oil  Company,  60  W.  Va.  423,  427,  55  S.  E. 
1009. 


558  PKINCIPLES   OF   GENERAL  APPLICATION  (Part 

CHAPTER  IV 
CURING  DEFECTS 


SECTION  1.— EXPRESS  AIDER 


THE  PROBATE  COURT  v.  VAN  DUZER. 

(Supreme  Court  of  Vermont,  1841.     13  Vt.  135.) 

RedF'ieILD,  J.^  This  is  a  suit  upon  an  administrator's  bond.  A 
commission  of  insolvency  issued,  and  the  claim  of  the  prosecutor,  Eli 
N.  Johnson,  was  allowed  at  $130.59.  This  suit  is  brought  for  the  re- 
covery of  that  sum. 

The  breaches  assigned  are,  that  Van  Duzer,  the  administrator,  did 
not  render  a  true  and  just  account  of  his  administration,  and  that  he 
has  not  faithfully  administered,  paid  out,  and  distributed  all  the  es- 
tate of  the  deceased ;  but,  on  the  contrary,  the  debts  due  from  the  es- 
tate, and  especially  the  prosecutor's,  remain  unpaid.  This  is  obviously 
no  sufficient  breach  of  the  bond  to  enable  the  prosecutor  to  maintain  an 
action.  After  the  issuing  of  a  commission  of  insolvency,  all  proceed- 
ings for  the  collection  of  debts,  due  from  the  estate,  in  all  courts,  ex- 
cept the  probate  court,  are  suspended,  until  the  commission  is  closed, 
and  a  final  decree  is  obtained  against  the  administrator  for  the 
payment  of  all  the  debts,  or  a  dividend  thereon,  or  until  the  ac- 
count of  the  administrator  is  allowed  by  the  probate  court,  and 
the  debts,  or  a  dividend  thereon,  passed  to  his  credit,  which  is 
equivalent  to  a  decree  of  distribution.  Until  such  final  decree  of 
distribution,  or  upon  the  administrator's  account,  or  the  administra- 
tor has  been  cited  before  the  probate  court  to  render  his  account, 
and  has  failed  to  appear,  no  action  can  be  maintained  upon  the 
bond  of  an  executor,  or  administrator,  of  an  insolvent  estate.  -The 
probate  court  have  exclusive  jurisdiction  of  such  account,  and  its 
adjustment  cannot  be  drawn  into  another  court.  Dox  v.  Backenstose, 
12  Wend.  (N.  Y.)  542;  Newcomb  v.  Wing,  3  Pick.  (Mass.)  168;  Paine 
v.  Stone,  10  Pick.  (Mass.)  75.  Paine  v.  Moffit,  11  Pick.  (Mass.)  496. 
The  same  rule  has  been  adopted  in  many  of  the  other  American  states, 
in  regard  to  estates  represented  insolvent.  The  liability  in  regard  to 
solvent  estates  would,  doubtless,  be  different.  And  the  case  of  Warren 
V.  Powers,  5  Conn.  373,  is  directly  the  reverse.  That,  too,  seems  to 
have  been  an  estate  settled  by  a  commission  of  insolvency.     But  the 

1  The  statement  of  facts  is  omitted. 


Ch.  4)  CURING   DEFECTS  559 

point  was  not  much  considered,  and  we  do  not  think  the  case  rests 
upon  the  most  convenient  basis  of  proceedings.  Had  tlie  defendants 
demurred,  in  this  case,  judgment  must  have  been  against  the  plaintiff, 
for  the  insufficiency  of  the  declaration.  But  a  defective  declaration 
may  be  cured  by  the  plea.  Wood  v.  Scott,  13  Vt.  42.  In  the  present 
case,  the  defendants,  in  their  plea,  admit  that  the  administrator's  final 
account  was  passed  before  the  probate  court,  and  in  that  account  he 
was  allowed  for  the  payment  of  the  prosecutor's  full  claim. 

This  supplies  the  defect  in  the  declaration,  and  is  conclusive  upon 
the  defendant  as  to  Van  Duzer's  obligation  to  pay  the  full  amount  of 
the  prosecutor's  claim,  for  that  was  the  matter  directly  adjudicated 
by  the  probate  court.  Sparhawk  et  al.  v.  Administrator  of  Buell  et 
•al.,  9  Vt.  41. 

But  this  adjudication  will  not  avail  the  defendants  for  the  purposes 
for  which  it  is  urged,  that  is,  to  show  that  Van  Duzer  has  in  fact  paid 
the  prosecutor's  claim,  for  the  question  was  never  directly  decided  by 
the  probate  court.  It  was  immaterial  to  the  making  up  the  account 
whether  the  debt  had  been  in  fact  paid  or  not,  if  Van  Duzer  was  liable 
to  pay  it,  it  would  be  passed  to  his  credit,  and  his  bond  stand  as  se- 
curity for  the  fulfilment  of  that  obligation.  So  that  the  probate  court 
having  allowed  Van  Duzer  to  credit  himself,  in  his  account,  the  full 
amount  of  the  prosecutor's  claim,  is  conclusive  upon  him  that  he  had 
assets  for  that  purpose,  and  to  that  extent.  The  same  point  was  de- 
cided in  the  case  last  cited. 

The  plaintiff,  in  his  replication,  treats  the  defendants'  plea  as  being 
sufficient,  unless  avoided.  This  he  attempts  to  do  by  alleging  fraud  in 
closing  Van  Duzer's  account  before  the  probate  court.  If  that  were 
the  fact,  it  could  only  be  corrected  by  application  to  that  court  to  re- 
examine the  account.  The  adjudication  of  that  court,  upon  a  matter 
exclusively  wathin  its  jurisdiction,  could  not  be  thus  collaterally  im- 
peached. Paine  v.  Stone,  10  Pick.  (Mass.)  75.  To  this  replication 
there  is  a  demurrer. 

The  case  presents  rather  an  anomalous  state  of  pleadings.  The 
declaration  is  insufficient ;  that  defect  is  cured  by  the  plea ;  the  plea  is 
bad  for  all  other  purposes,  and  the  replication  is  of  a  matter  which 
cannot  be  tried  in  this  suit,  and  is  bad.  But,  upon  the  whole  pleadings 
we  are  enabled  to  come  at  the  justice  of  the  case. 

The  judgment  of  the  county  court  is  reversed,  and  judgment  that 
the  replication  is  sufficient,  and  that  the  plaintiff  recover  his  damages 
and  costs.     See  Day  v.  Essex  County  Bank,  13  Vt.  97.^ 

2  For  numerous  cases  accord,  see  31  Cyc.  714-716,  notes  55,  57 ;  4  Ency.  PL 
«&  Pr.  608.  An  express  denial  of  the  existence  of  a  material  fact,  omitted  from 
the  adversary's  pleading,  or  an  allegation  of  the  nonexistence  of  such  fact, 
will,  by  the  better  view,  cure  such  omission.  Feibehnan  v.  Manchester,  etc., 
Co.,  108  Ala.  ISO,  19  South.  540  (1895)  ;  Catlin  v.  Jones,  48  Or.  158,  85  Pac. 
515  (1906) ;    Bruce  v.  Beall,  100  Tenn.  .578,  47  S.  W.  204  (1898)  ;    31  Cyc.  710. 

"The  rule  is  that  a  party  cannot  rely  upon  allegations  of  his  adversary  to 


5G0  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

SECTION  2.— PLEADING  OVER 


BAUMAN  V.  BEAN. 

(Supreme  Court  of  Michigan,  1SS5.     57  Mich.  1,  23  N.  W.  451.) 

CooLKY,  C.  J.^  This  is  an  action  for  assault  and  battery.  The  de- 
fendant was  engineer  of  the  Brush  Electric  Light  Company,  of  De- 
troit, and  the  plaintiff  was  "oiler,  laborer,  and  helper"  under  him. 
The  plaintiff's  case  was,  that  leaving,  in  the  afternoon  of  the  day  of 
the  occurrence,  lighted  the  fires  under  the  boilers,  as  was  his  duty, 
the  defendant  came  in,  went  to  the  top  of  the  boilers  upon  a  ladder, 
and  finding  the  pressure  of  steam  excessive,  flew  into  a  passion,  and 
called  the  plaintiff  vile  names,  and  when  plaintiff  remonstrated,  rushed 
down  the  ladder  and  struck  him  over  the  head  with  a  club. 

When  the  case  was  called  for  trial,  the  defendant  objected  to  any 
evidence  being  given,  assigning  for  reason  that  the  declaration  was 
defective.  No  defect  was  pointed  out  that  was  not  amendable,  if,  in- 
deed, it  was  a  defect  at  all.  The  court  allowed  an  amendment,  and 
the  case  proceeded,  against  the  objection  of  the  defendant. 

We  cannot  sanction  the  practice  of  pleading  to  the  merits,  and  then 
raising  at  the  trial  an  objection  in  the  nature  of  a  demurrer.  It  is 
every  way  an  inconvenient  practice,  and  it  tends  to  make  litigation  un- 
necessarily expensive.  If  a  declaration  fails  altogether  to  set  out  a 
substantial  cause  of  action,  and  is  incapable  of  being  made  good  by 
amendment,  the  objection  may  be  taken  in  any  stage  of  the  proceed- 
ings; but  even  then,  for  very  obvious  reasons  of  convenience,  the  ques- 
tions of  sufficiency  ought  to  be  disposed  of  before  parties  are  put  to 
the  expense  of  preparation  for  trial.  But  if  the  objections  to  the  dec- 
laration are  not  necessarily  fatal,  the  defendant  has  no  claim  to  the 
indulgence  of  a  hearing  upon  them  at  the  trial.*  This  we  have  de- 
cided in  previous  cases.  Norton  v.  Colgrove,  41  Mich.  544,  3  N.  W. 
159;  Barton  v.  Gray,  48  Mich.  164,  12  N.  W.  30.  Analogous  cases 
are  Lamb  v.  Jeffrey,  41  Mich.  719,  3  N.  W.  204;  Burke  v.  Wilber,  42 
Mich.  327,  3  N.  W.  861.    *    *    * 

We  are  of  opinion  that  the  judge,  all  through  the  trial,  restricted 
the  defendant  in  showing  his  excuse  for  the  assault  within  too  narrow 
limits.     *     *     * 

A  new  trial  must  be  ordered.    The  other  Justices  concurred. 

cure  defects  in  his  own  pleadings,  wlien  in  a  subsequent  pleading  he  denies 
such  allegation."  McBride,  J.,  in  John  P.  Sharkey  Co.  v.  Portland,  58  Or.  353, 
362,  106  Pac.  331,  114  Pac.  933  (1911). 

3  Portions  of  the  opinion  are  omitted. 

4  For  numerous  cases  holding  that  defects  not  subject  to  general  demurrer 
are  cured  by  pleading  over,  see  4  Ency.  PI.  &  Pr.  009 ;  0  Ency.  PI.  &  Pr.  372 ; 
SI  Cyc.  719,  note  78. 


Ch.  4)  CURING   DEFECTS  561 

SECTION  3.— WAIVER 


INHABITANTS   OF  WEST  ROXBURY  v.  MINOT. 

(Supreme  Judicial  Court  of  ISIassacliusetts,  1874.     114  Mass.  546.) 

Contract  to  recover  the  amount  assessed  upon  the  defendant  under 
Gen.  St.  1860,  c.  45,  §  7,  as  his  share  of  the  expense  of  grading  a  side- 
walk. 

In  the  Superior  Court,  the  case  was  submitted  upon  an  agreed  state- 
.ment  of  facts.  Judgment  was  ordered  for  the  plaintiffs,  and  the  de- 
fendant alleged  exceptions. 

Endicott,  J.  This  case  comes  within  the  rule  stated  in  Roxbury 
V.  Nickerson,  114  Mass.  544. 

St.  1855,  c.  43,  gave  cities  and  towns  accepting  the  same  authority 
to  establish  and  grade  sidewalks,  and  assess  upon  the  abutters  one- 
half  of  the  expense  thereof ;  ^uch  assessments  to  be  a  lien  upon  the 
abutting  lands,  as  taxes  are  a  Hen  upon  real  estate.  This  was  the 
first  general  legislation  on  the  subject.  These  provisions  are  re-en- 
acted in  Gen.  St.  1860,  c.  45,  §§  7,  8.  The  method  for  collecting  such 
assessments  thus  prescribed  by  the  statutes  must  be  followed,  the  lien 
must  be  enforced  by  a  sale  of  the  land,  and  a  town  cannot  collect  such 
assessments  in  an  action  at  law.     Roxbury  v.  Nickerson,  supra. 

But  the  plaintiffs  contend  that  the  defendant,  having  submitted  the 
case  to  the  judgment  of  the  court  on  an  agreed  statement  of  facts, 
cannot  raise  this  question.  Upon  an  agreed  statement  of  facts,  the 
only  question  open  is  whether  the  plaintiffs  can  recover  upon  any 
form  of  declaration  or  in  any  form  of  action.  Ellsworth  v.  Brewer, 
11  Pick.  316;  Gushing  v.  Kenfield,  5  Allen,  307;  Merrill  v.  Bullock, 
105  Mass.  486.  Such  statement  waives  all  defects  in  pleading.  Bret- 
tun  V.  Fox,  100  Mass.  234;  Kimball  v.  Preston,  2  Gray,  567;  Folger 
V.  Columbian  Ins.  Co.,  99  Mass.  267,  277,  96  Am.  Dec.  747;  Roger 
V.  Daniell,  8  Allen,  343,  349.  But  this  is  the  extent  of  the  rule.  It 
does  not  apply  where  the  subject-matter  of  the  suit  is  such  that  no 
action  at  law  lies  for  its  recovery.  Taxes  on  real  estate,  being  a  lien 
on  the  estate,  can  only  be  enforced  by  the  sale  of  the  estate  itself ;  and 
an  agreed  statement  of  facts,  signed  by  the  parties,  does  not  give  the 
court  jurisdiction  to  collect  them,  the  statute  being  decisive  as  to  the 
method  of  collecting. 

By  the  agreed  statements  of  facts,  therefore,  the  defendant  waived 
all  technical  objections  to  the  pleadings  and  form  of  action,''  but  he 

5  In  addition  to  tlie  cases  cited  in  tlie  opinion,  see  Hamilton  v.  County  of 
Cook,  4  Scam.  (5  111.)  519  (1843),  semble ;  Machias  Hotel  Co.  v.  Fisher,  56  Me. 
821  (1868);  American  Coal  Co.  v.  County  Commissioners,  59  Md.  1S5  (1882); 
Bixler  v.  Kunkle's  Ex'rs,  17  Serg.  &  R.  (Pa.)  298  (1828),  semble;    Sawyer  v. 


562  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3 

did  not  waive  the  question  whether,  in  any  form  of  action,  the  plain- 
tiffs can  recover  taxes  on  real  estate. 

The  cases  cited  by  the  plaintiffs  were  decided  upon  the  special  pro- 
visions of  the  charter  of  the  city  of  Lowell,  and  do  not  apply  to  cases 
arising  under  this  statute.  Lowell  v.  Wentworth,  6  Cush.  221 ;  Lowell 
V.  French,  6  Cush.  223 ;  Lowell  v.  Wyman,  12  Cush,  273. 

Judgment  for  the  defendant. 


FOLSOM  V.  BRAWN. 
(Superior  Court  of  Judicature  of  New  Hauipsliire,  1852.    25  N.  H.  114.) 

Case  for  slander.  The  declaration  alleged  that  a  certain  trial  at 
law  was  had  between  Brawn,  the  defendant,  and  one  Samuel  Pres- 
cott,  at  Ossipee,  in  the  county  of  Carroll,  on  the  second  Tuesday  of 
November,  1846,  on  which  trial  Leonard  S.  Folsom,  the  plaintiff  in  this 
suit,  was  a  witness  for  Prescott,  and  that  afterwards  Brawn,  the  de- 
fendant, charged  Folsom  with  having  committed  perjury  in  his  tes- 
timony given  upon  that  trial. 

The  defendant  pleaded  the  general  issue  and  filed  therewith  a  brief 
statement  as     follows : 

"The  plaintiff  will  take  notice  that  the  defendant,  on  the  trial  of 
the  above  issue,  will  prove  that  the  plaintiff,  on  the  trial  of  the  action 
George  W.  Brawn  against  Samuel  Prescott,  in  the  court  of  common 
pleas,  holden  at  Ossipee,  in  the  county  of  Carroll,  on  the  second  Tues- 
day of  November,  A.  D.  1846,  did  testify  that  he  was  at  the  black- 
smith shop  of  Enoch  Prescott,  in  Meredith,  in  March,  1845,  when 
said  Brawn  came  there,  and  was  there  all  the  time  he,  said  Brawn, 
continued  there  with  said  Samuel  Prescott,  and  heard  the  conver- 
sation that  said  Brawn  had  with  said  Samuel  Prescott,  concerning  a 
sore  on  a  certain  colt.  Now  the  said  Brawn  says  said  Folsom  was  not 
present  during  the  conversation  aforesaid,  and  no  such  conversation 
was  had  between  said  Brawn  and  Prescott,  as  testified  by  said  Folsom,, 
and  that  whatever  said  Brawn  may  have  said  concerning  the  testimony 
of  said  Folsom  on  said  trial  was  as  to  said  presence  and  conversation, 
and  none  other."     *     *     * 

Eastman,  J.  We  have  had  some  hesitancy  in  regard  to  the  effect 
which  should  be  given  to  the  brief  statement  which  was  filed  in  this 
case,  but  the  result  of  our  consultation  is  that  it  must  be  held  defec- 
tive. A  brief  statement  is  a  substitute  for  a  special  plea,  and  where  it 
purports  to  give  notice  of  matter  which  is  a  full  answer  to  the  plain- 
Corse,  17  Grat.  (Va.)  230,  94  Am.  Dec.  445  (1867);  Saltonstall  v.  Russell,  152 
U,  S.  628,  14  Sup.  Ct.  733,  38  L.  Ed.  576  (1894).     Accord. 

Amendable  defects  in  pleadings  are  cured  by  a  reference  by  consent.  Ames 
V.  Stevens,  120  Mass.  218  (1876);  Smith  v.  Minor,  1  N.  J.  Law,  16  (1790); 
Moulton  V.  Moore,  56  Vt.  700  (1884),  semble.  See,  also,  McKay  v.  Darling, 
65  Vt.  039,  27  Atl.  324  (1S93). 


Ch.  4)  CURING   DEFECTS  563 

tiff's  declaration,  it  should  contain  all  the  substantial  elements  of  a 
special  plea.  Precision  and  exactness  are  not  necessary,  but  substance 
is  essential. 

When  a  defendant  in  an  action  of  slander  justifies  by  his  plea  the 
speaking  of  the  words  charged,  he  must  do  it  with  distinctness  and 
point,  and  not  in  an  argumentative  and  evasive  manner,  nor  in  general 
and  uncertain  terms.  Had  the  substance  of  this  brief  statement  been 
embraced  in  a  special  plea,  it  would  manifestly  have  been  bad  on  de- 
murrer. The  speaking  of  the  words  is  not  fully  and  distinctly  admitted 
and  justified,  as  should  be  the  case  when  a  defendant  places  himself 
upon  the  broad  ground  of  truth  in  the  charge  which  he  has  made. 

If  a  brief  statement  is  defective  and  insufficient,  the  proper  prac- 
■tice  is  to  move  the  court  to  reject  it.  The  party  will  then  be  obliged 
to  put  his  statements  into  a  substantial  and  definite  form,  or  the  brief 
statement  will  be  stricken  out.  Or  a  party  may  object  to  evidence  as 
it  is  offered,  which  would  be  admissible  under  a  sufficient  brief  state- 
ment, as  inadmissible  under  a  defective  one.  The  former  practice,  of 
moving  to  reject  the  brief  statement,  is  preferable,  however,  as  the 
parties  will  then  go  to  trial  without  any  uncertainty  as  to  their  posi- 
tion. 

Holding  this  brief  statement  to  be  insufficient,  had  the  plaintiff- 
moved  to  reject  it,  or  had  he  excepted  to  the  defendant's  evidence,  as 
it  was  offered,  as  being  inadmissible  under  the  brief  statement,  he 
would  have  prevailed.  But  it  appears  that  it  was  not  till  after  the 
evidence  in  the  cause  was  closed  that  the  plaintiff  requested  the  court 
to  rule  in  regard  to  it.  It  appears  also  that  it  was  left  to  the  jury 
to  find  whether  Folsom  perjured  himself  at  the  trial  at  Ossipee  or 
not.  The  cause  then  must  have  been  tried  as  though  the  brief  state- 
ment were  full  and  definite;  and  we  do  not  see  that  the  plaintiff  has 
sustained  any  injury  by  the  deficiency  in  the  brief  statement  or  the 
neglect  to  move  to  reject  it.  The  jury  by  their  verdict  have  negatived 
the  charge  of  perjury,  and  the  court  distinctly  instructed  them  that 
the  evidence  introduced  by  the  defendant  was  not  to  be  regarded  by 
them  in  mitigation  of  damages,  but  as  a  defence  to  the  plaintiff's  right 
of  recovery.  At  all  events  it  was  too  late  to  raise  the  question  after 
the  evidence  in  the  cause  was  all  in,  and  a  trial  had,  as  upon  a  sufficient 
brief  statement.*'     *     *     * 

Judgment  on  the  verdict.'' 

6  A  portion  of  the  statement  of  facts  and  of  the  opinion  is  omitted. 

7  It  seems  to  be  well  settled  that  a  defective  statement  of  a  cause  of  action 
will  be  cured  by  evidence  received  without  objection,  but  there  is  a  conliict  of 
authority  as  to  wliether  a  total  failure  to  state  a  cause  of  action  can  be  so 
cured.     See  31  Cyc.  72.3,  and  cases  cited. 

Even  the  alisence  of  plea  or  reiilication  will  be  waived  if  the  parties  proceed 
to  trial  as  if  the  plea  or  replication  were  on  file.  First  National  Bank  v.  Mil- 
ler, 235  111.  135.  139,  85  N.  E.  312  (1908) ;  18  Ency.  PL  &  Pr.  650,  and  cases 
cited ;  31  Cyc.  733,  note  7S. 


564 


PKINCIPLES   OF   GENERAL  APPLICATION 


(Part  ^ 


SECTION  4.— DEFAULT  AND  VERDICT 


DUNN  V.  SULLIVAN. 

(Supreme  Court  of  Rhode  Island,  1902.     23  R.  I.  605,  51  Atl.  203.) 

TiLLiNGHAST,  J.  This  is  trespass  and  ejectment,  and  is  before  us 
on  the  defendant's  motion  in  arrest  of  judgment. 

The  facts  are  these:  The  action  was  brought  in  a  district  court, 
where  the  defendant  entered  an  appearance,  and,  after  several  contin- 
uances, decision  was  rendered  for  the  plaintiff  for  possession  and  costs. 
The  defendant  thereupon  claimed  a  jury  trial,  and  the  case  was  duly 
certified  to  the  common  pleas  division  of  this  court,  and  after  several 
assignments  was  finally,  on  December  6,  1901 — the  day  on  which  it 
had  been  finally  assigned  for  trial — called  and  defaulted,  and  decision 
rendered  for  the  plaintiff  for  possession  and  double  costs. 

Whereupon,  on  December  7,  1901,  the  defendant  filed  said  motion 
in  arrest  of  judgment,  and  the  case  was  certified  to  this  division  for 
the  trial  thereof. 

The  grounds  upon  which  the  motion  is  based  are  (1)  that  the  decla- 
ration states  no  cause  of  action,  as  no  seisin  in  the  premises  sued  for 
is  alleged  to  be  in  the  plaintiff,  and  that  the  title  of  plaintiff  is  not  set 
forth  so  explicitly  that  a  judgment  in  her  favor  will  determine  the 
character  of  her  estate;  and  (2)  that  the  declaration  does  not  suffi- 
ciently describe  her  estate,  in  terms  explicit  enough  to  determine  title 
to  the  same. 

That  part  of  the  declaration  which  is  in  question  is  as  follows : 
"For  that  the  said  defendant,  at  said  Pawtucket,  on'  the  28th  day  of 
March,  1900,  with  force  and  arms,  wrongfully  detained  from  the  plain- 
tiff-possession of  a  certain  tenement  to  the  plaintiff  belonging, — being 
the  house  located  at  the  corner  of  Hurley  and  Bloomingdale  avenues, 
in  said  Pawtucket, — and,  with  like  force  and  arms,  wrongfully  detained 
possession  of  the  same  from  the  plaintiff,  against  the  peace." 

That  this  declaration  was  demurrable  under  the  decision  of  this 
court  in  Taylor  v.  O'Neil,  15  R.  I.  198,  2  Atl.  299,  there  can  be  no 
doubt.  It  does  not  set  forth  the  title  of  the  plaintiff  to  the  premises  in 
question  so  explicitly  that  a  judgment  in  her  favor  will  determine  the 
character  of  her  estate,  and  not  simply  her  right  of  possession. 

The  question  presented  for  our  decision,  therefore,  is  whether,  the 
declaration  being  demurrable,  the  motion  in  arrest  of  judgment  must 
be  granted. 

The  general  rule  is  that  any  defect  in  the  declaration  which  would 
be  fatal  on  demurrer  is  also  fatal  upon  a  motion  in  arrest  of  judgment. 
State  V.  Doyle,  11  R.  I.  574;  2  Enc.  PI.  &  Prac.  796,  and  cases  in  note  2. 

The  principal  exception  to  this  rule  is  that  where  the  matter  which 


Ch.  4)  CURING   DEFECTS  565 

constitutes  the  defect  is  so  essentially  necessary  to  be  proved  that, 
had  it  not  been  given  in  evidence,  the  jury  could  not  have  given  such  a 
verdict,  there  the  want  of  stating  that  matter  in  express  terms  in  the 
declaration,  provided  it  contains  terms  sufficiently  general  to  compre- 
hend it  in  fair  and  reasonable  intendment,  will  be  cured  by  a  verdict. 

In  support  of  this  statement  of  the  law,  the  observations  of  Mr. 
Sergeant  Williams,  as  quoted  in  Steph.  PI.  p.  148,  are  pertinent.  He 
says :  "Where  there  is  any  defect,  imperfection,  or  omission  in  any 
pleading,  whether  in  substance  or  form,  which  would  have  been  a 
fatal  objection  upon  demurrer,  yet,  if  the  issue  joined  be  such  as  nec- 
essarily required  on  the  trial,  proof  of  the  facts  so  defectively  or  im- 
perfectly stated  or  omitted,  and  without  which  it  is  not  to  be  presumed 
that  either  the  judge  would  direct  the  jury  to  give,  or  the  jury  would 
have  given,  the  verdict,  such  defect,  imperfection,  or  omission  is  cured 
by  the  verdict." 

Ward  v.  Bartholomew,  6  Pick.  (Mass.)  409,  was  a  writ  of  entry,  in 
which  the  plaintiff  claimed  an  undivided  third  part  of  a  certain  tract 
of  land,  "whereof  the  tenant  unjustly,"  etc.,  "disseised  the  demandant 
within  thirty  years."    The  tenant  pleaded  non  desseisivit. 

Upon  motion  in  arrest  of  judgment  after  verdict  for  the  plaintiff', 
the  court  said:  "This  declaration,  though  it  alleges  no  seisin  in  the 
demandant,  avers  that  he  was  disseised  by  the  tenant.  Now,  it  is  plain 
that  such  a  verdict  could  not  have  been  returned  without  proof  of  a 
seisin  by  the  demandant,  for  he  could  not  be  disseised  without  having 
been  seised;  and  no  court  could  have  allowed,  nor  could  any  jury  have 
agreed  in,  that  verdict,  imless  there  was  sufficient  evidence  of  the  fact 
without  proof  of  which  the  demandant  could  not  have  advanced  a  step 
on  the  trial.  It  is  true  that  a  seisin  only  can  be  inferred  from  the 
declaration,  plea,  and  verdict,  and  that  the  case  is  still  left  destitute 
of  any  averment  or  even  implication  of  the  nature  and  extent  of  the 
seisin.  But  if  seised  and  disseised,  the  demandant  is  entitled  to  judg- 
ment, and  it  may  be  a  subject  of  future  inquiry  to  what  extent  this 
judgment  will  affirm  his  title.  If  only  to  a  freehold,  still  he  is  entitled 
to  be  reseised."  See,  also.  Smith  v.  Cleveland,  6  Mete.  (Mass.)  332; 
Bartlett  v.  Crozier,  17  Johns.  (N.  Y.)  458,  8  Am.  Dec.  428;  Shaw  v. 
Redmond,  11  Serg.  &  R.  (Pa.)  30;  Irons  v.  Field,  9  R.  I.  216;  Black, 
Judgm.  §  98;  3  Bl.  Comm.  394;  Perry,  Comm.  PI.  237,  238;  2  Tidd, 
Prac.  918.* 

In  view  of  the  law  as  thus  stated,  we  think  the  defect  in  the  decla- 
ration before  us,  although  one  of  substance,  and  not  merely  of  form, 
would  have  been  cured  by  a  verdict  in  favor  of  the  plaintiff.  But 
there  has  been  no  trial  of  the  case,  and  hence  there  is  no  verdict  in  aid 
of  said  defect.  Nor  has  there  been  any  trial  of  the  case  by  the  court, 
which  probably  would  have  been  equally  effective  in  aid  of  the  defect 

8  For  cases  as  to  defects  in  pleadings  cured  by  verdict,  see  Bedell  v.  Stevens, 
p.  542,  supra;  City  of  Elgin  v.  Tiiompson,  p.  546,  supra;  Bull  v.  Matthews, 
p.  549,  supra ;    Savignac  v.  Roome,  p.  551,  supra,  and  the  notes  thereto. 


566  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

as  the  verdict  of  a  jury.  The  record  shows  that  the  case  was  simply 
defaulted,  and  a  decision  rendered  thereon  in  favor  of  the  plaintiff. 
The  case,  therefore,  practically  stands  as  though  it  were  before  us  on 
demurrer  to  the  declaration,  and  hence  we  feel  compelled  to  grant  the 
motion  in  arrest  of  judgment.    Gould's  PL  (Ed.  1849)  p.  505,  §  26. 

The  case  is  remitted  to  the  common  pleas  division,  with  direction  to 
arrest  the  judgment.^ 


SECTION  5.— AMENDMENTS 


AUBEER  V.  BARKER. 

(Court  of  King's  Bench,  1746.     1  Wils.  149.) 

It  was  moved  on  behalf  the  plaintiff  to  amend  his  declaration,  by 
adding  two  counts;  this  application  to  the  court  was  made  after  the 
term  next  after  the  term  in  which  the  declaration  was  delivered,  and 
after  the  defendant  had  pleaded  thereto. 

Wright,  Justice  (absente  LeE,  C.  J.).  I  take  it  to  be  the  rule  of 
the  court,  that  a  count  cannot  be  added  after  two  terms,  and  the  term 
in  which  the  declaration  is  delivered  is  always  included ;  as  to  the  case 
of  the  Dutchess  of  Marlborough  v.  Widmore,  Hil.  4  Geo.  2.  in  B.  R.  the 
amendment  in  that  case  was  allowed  on  a  particular  reason,  for  if  it 
had  not  been  there  allowed,  the  action  would  have  been  lost  by  the 
running  of  the  statute  of  limitations.  Dennison  and  Foster,  Justices, 
of  the  same  opinion;  and  so  the  rule  to  shew  cause  why  the  amend- 
ment should  not  be  made  was  discharged :  but  N.  B.  Another  rea- 
son for  discharging  the  rule  was,  because  the  defendant  was  in  actual 
custody ;  and  this  was  the  third  term  he  had  been  so ;  and  this  would 
be  making  a  new  declaration  to  keep  him  in  prison  so  much  the  longer. 

9  This  doubtless  is  the  orthodox  rule.  Hoyt  v.  Macon,  2  Colo.  113  (1873), 
semble ;  "Warren  v.  Harris,  2  Gilmau  (7  111.)  307  (1845),  semble ;  Emerson  v. 
Lakin,  23  Me.  384  (1844).  semble ;  Hemmenway  v.  Hickes,  4  Pick.  (Mass.)  497 
(1827) ;  Roe  v.  Baker.  4  Leigh  (Va.)  416,  note  (1833) ;  Collins  v.  Gibbs.  2  Burr. 
899  (1759) ;  1  Wms.  Saimd.  227,  note  1;  Gould,. Pleading  (Hamilton's  Ed.)  484 ; 
16  Eney.  PL  &  Pr.  122.  But  in  some  states,  by  statute,  default  has  substantial- 
ly the  same  effect  in  curing  pleadings  as  has  a  verdict.  Elliott  v.  Farwell,  44 
Mich.  186,  6  N.  W.  234  (1S80) ;  Ragsdale  v.  Caldwell,  2  How.  (Miss.)  930  (1838). 
And  in  some  states  the  same  result  seems  to  be  reached  without  statute. 
Swope  V,  Sherman,  7  Ala.  App.  210,  60  South.  474  (1912),  semble ;  Williams 
V.  Bank,  1  Cold.  (Tenn.)  43  (1860).  See,  also.  Buck  v.  Citizens,  etc.,  Co.,  163  III. 
App.  637  (1911) ;    Id.,  254  111.  198,  98  N.  E.  228  (1912). 


Ch.  4)  CURING   DEFECTS  567 

TOBIAS  V.  HARLAND. 
(Supreme  Court  of  New  York,  1S2S.     1  Wend.  93.) 

Motion  to  amend  narr.  The  declaration  is  in  slander,  for  words 
spoken  injurious  to  the  plaintiff,  as  a  dealer  in  watches  of  a  particular 
description.  In  the  inducement  in  the  declaration,  and  in  the  ac  etiam 
clause  of  the  capias,  the  plaintiff  is  alleged  to  be  a  manufacturer  of 
watches,  and  that  the  words  were  spoken  in  reference  to  his  trade  and 
business,  as  such  manufacturer.  From  a  commission  to  take  testimony, 
just  returned  from  Liverpool,  it  appears  that  the  plaintiff  is  not  the 
manufacturer  of  the  watches  spoken  of,  but  that  they  are  manufac- 
tured expressly  for  him,  and  forwarded  to  him  from  Liverpool.  Is- 
sue was  joined  in  August,  1827.  The  commission  was  returned  on  the 
17th  day  of  July  last.  The  plaintiff's  attorney  states,  that  he  was  not 
aware  of  the  necessity  of  an  amendment,  until  after  the  return  of  the 
commission,  and  that  more  than  two  years  have  elapsed  since  the  ac- 
cruing of  the  action. 

By  the  Court,  Savage,  C.  J.  The  plaintiff  is  entitled  to  amend,  on 
payment  of  costs,  especially,  as  otherwise  his  action  will  be  lost  by  the 
running  of  the  statute.    The  defendant  has  leave  to  plead  anew.^** 


BETTS  V.  HOYT. 

(Supreme  Court  of  Errors  of  Connecticut,  1840.     13  Conn.  4G9.) 

Action  on  a  promissory  note.  After  verdict  for  plaintiff  defendant 
moved  in  arrest  of  judgment  because  the  declaration  failed  to  show  at 
what  time  the  money  was  due  or  demandable.  Judgment  was  arrest- 
ed. Thereupon  plaintiff  moved  for  leave  to  amend  the  declaration  by 
inserting  an  allegation  that  the  note  was  due  on  demand.  The  defend- 
ant objected  that  no  such  motion  could  at  this  time  be  legally  made. 
The  questions  arising  on  this  motion  were  reserved  for  the  considera- 
tion and  advice  of  this  court. ^^ 

Church,  J.  The  allowance,  or  disallowance,  of  amendments,  is 
within  the  discretionary  power  of  the  courts,  in  the  absence  of  stat- 
ute regulations.  The  time  beyond  which  an  amendment  may  not 
be  allowed  has  not  been  prescribed,  by  any  statute  of  this  state.  At 
common  law,  amendments  of  pleadings  have  been  permitted  at  any 
time  before  judgment.      Co.  Litt.  280;    1  Petersd.  Abr.  504,  539,  a. 

10  Beard  v.  Simmons,  9  Ga.  4  (1850) ;  Sanger  v.  City  of  Newton;  134  Mass. 
308  (1883) ;  Stoner  v.  Erisman,  206  Pa.  GOO,  56  Atl."  77  (1903).  Accord.  See 
Allen  V.  Tuscarora,  etc.,  Co.,  infra,  p,  585 ;  Neiibeck  v.  Lynch,  infra,  p.  576, 
and  notes  thereto. 

11  This  statement  of  the  case  is  substituted  for  that  in  the  official  report. 

Whit.C.L.Pl.— 37 


568  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3^ 

And  the  same  has  been  permitted,  in  special  cases,  in  the  state  of  New 
York  and  by  the  courts  in  other  states.  Lion  v.  Burtis,  18  Johns.  510; 
Sargent  v.  Dennison,  2  Cow.  515;  Rees  v.  Overbaugh,  4  Cow.  124; 
Daley  v.  Atwood,  7  Cow.  483;    Mott  v.  Jerome,  7  Cow.  518. 

In  this  state  the  courts,  in  the  exercise  of  their  discretionary  power, 
in  ordinary  cases,  have  refused  to  sanction  amendments  of  pleadings, 
after  they  have  been  adjudged  insufficient,  upon  motion  in  arrest.  1 
Sw.  Dig.  779.  And  the  present  motion  discloses  nothing  which  should 
induce  us  to  depart  from  established  practice  in  such  cases :  and  by 
doing  so  we  fear  we  might  encourage  a  negligence  and  laxity  in  plead- 
ing and  practice,  which  would  prove  very  inconvenient,  both  to  the 
bar  and  the  court ;  and  we  must  therefore  advise  the  superior  court  to 
deny  this  motion. 

But,  at  the  same  time,  had  the  motion  set  forth  facts  which  had  sat- 
isfied us  that  a  serious  and  irretrievable  loss  would  have  resulted  to 
the  plaintiff  from  a  refusal  of  this  amendment  beyond  the  mere  loss 
of  a  bill  of  costs,  and  the  expense  and  delay  of  commencing  and  prose- 
cuting another  action,  such  as  a  loss  of  the  debt,  by  the  operation  of  the 
statute  of  limitations,  or  discharge  of  the  lien  created  by  attachment, 
etc.,  we  should  have  believed  that  a  just  exercise  of  the  discretionary 
power  of  the  court  would  have  sanctioned  the  amendment  prayed  for. 
In  the  case  of  Aubeer  v.  Barker,  1  Wils.  149,  the  court  said  that  it 
was  a  rule  of  that  court  that  a  new  count  could  not  be  added,  after 
two  terms ;  and  yet  this  had  been  permitted  to  prevent  the  loss  of  the 
debt  by  the  statute  of  limitations.  The  Duke  of  Marlborough's  Ex'rs 
V.  Widmore,  2  Str.  890;  1  Petersd.  Abr.  531;  Dartnall  v.  Howard  et 
al.,  2  Chitt.  Rep.  28. 

In  this  opinion  the  other  Judges  concurred. 

Amendment  not  allowed. ^^ 


DIAMOND  V.  WILLIAMSBURGH  INS.  CO. 

(Court  of  Common  Pleas  of  New  York,  1873.     4  Daly,  494.) 

The  defendant  moved,  at  the  Special  Term,  to  amend  his  answer  by 
setting  up  a  new  and  additional  defense.  The  plaintiff  insisted  that 
the  court  had  no  power  to  allow  it,  and  relied  upon  the  decision  of 
the  general  term  of  the  Superior  Court,  in  the  case  of  Woodruff  v. 
Dickie,  31  How.  Prac.  164;  Id.,  5  Robt.  619. 

12  "In  that  case  [Betts  v.  Hoyt,  13  Conn.  469  (1840)]  the  amendment  was  in 
fact  allowed,  on  a  new  motion  showins?  such  danger  of  loss,  and  by  one  of  the 
judges  who  sat  upon  and  concurred  in  the  decision  of  the  Supreme  Court.  That 
case  is  a  sufficient  precedent  for  this."  Butler,  C.  J.,  in  North  v.  Nichols,  39 
Conn.  355,  357  (1872). 

In  most  jurisdictions  statutes  authorize  amendments  in  furtherance  of  jus- 
tice at  almost  'any  stage  of  the  proceeding.  See  1  Ency.  PI.  &  Pr.  590-620 ;  3 
Eucy.  L.  &  P.  735-780;    31  Cyc.  393-407. 


I 


Ch.  4)  CUBING    DEFECTS  569 

Daly,  C.  J.^^  I  entertain  no  doubt  of  the  power  of  the  court  to 
allow  a  defendant  to  amend  his  answer  before  trial,  by  setting  up  an 
additional  defense,  if  it  be  in  furtherance  of  justice.  Under  the  old 
practice,  a  plaintiff  would  not  be  allowed  to  amend  his  declaration  if 
the  amendment  would  change  the  nature  of  the  action.  Cope  v.  Mar- 
shall, Sayre,  234;  Duchess  of  Marlborough  v.  Wignian,  Fitzg.  193. 
But  the  rule  was  not  so  strict  in  respect  to  amending  pleas,  or  adding 
a  new  and  different  plea  as  a  defense  to  the  action,  the  reason  given 
being  that  the  plaintiff,  if  he  has  misconceived  the  form  or  nature  of 
his  action,  can  discontinue  and  bring  a  new  action;  whereas  the  de- 
fendant must  avail  himself  of  his  defense  in  the  action  brought  against 
him.  Waters  v.  Bovill,  1  Wils.  223;  Cope  v.  Marshall,  Sayre,  234. 
The  defendant  would,  therefore,  be  allowed  to  amend  his  pleading  at 
a  stage  of  the  case  when  the  plaintiff  would  not  be  allowed  to  amend 
his  declaration  (Waters  v.  Bovill,  supra;  Skeet  v.  Woodward,  1  H. 
Bl.  238),  and  to  amend  by  setting  up  a  new  defense  (Dryden  v.  Lang- 
ley,  Barnes,  22 ;  Prior  v.  Duke  of  Buckingham,  8  Moore,  584 ;  Hubert 
V.  Steiner,  4  Moore  &  S.  228).  The  code  has  not  changed  the  law  m 
this  respect.  Its  provisions,  in  relation  to  the  amendment  of  pleadings, 
were  designed  to  be  more  broad  and  liberal  even  than  the  former 
practice.  The  codifiers  say,  in  respect  to  this  very  section  authorizing 
the  amendment  of  pleadings  and  proceedings  (then  section  149),  that 
their  object  was  (I  use  their  own  language)  "to  provide  a  means  of 
amendment  of  the  most  liberal  character ;  as  liberal,  indeed,  as  we 
could  devise."    First  Report  of  Commissioners,  1848,  p.  158. 

It  was  held  by  the  Superior'  Court,  in  Woodruff  v.  Dickie,  31  How. 
Prac.  164;  Id.,  5  Robt.  619,  Chief  Justice  Barbour  dissenting,  that 
under  the  code  the  court  has  no  power  to  allow,  by  amendment,  the 
insertion  of  a  new  or  different  cause  of  action  or  defense.  Judge 
Monell,  who  delivered  the  prevailing  opinion,  says  that  neither  at  com- 
mon law  nor  under  any  of  the  previous  statutes  was  such  a  power  ever 
claimed ;  and  the  decision  of  the  special  term  was  affirmed  upon  the 
ground  that  the  court  had  no  power  to  allow  a  defendant  to  amend 
his  answer  by  setting  up  a  new  defense. 

With  all  due  respect  for  the  very  able  court  by  whom  this  decision 
was  rendered,  I  think  the  conclusion  arrived  at  was  erroneous.  The 
four  authorities  cited  in  support  of  it  are,  with  one  exception,  cases  in 
which  the  plaintiff  applied  to  amend  his  declaration  by  setting  up  a 
new  cause  of  action,  and  are  in  accordance  with  the  old  practice,  as  I 
have  previously  stated  it;  that  an  amendment  of  a  declaration  would 
not  be  allowed  where  it  would  change  the  nature  of  the  action.  *  *  * 
In  the  last  case  cited,  Trinder  v.  Durant,  5  Wend,  72,  the  defendant 
applied  to  amend  a  plea  in  abatement,  not  by  setting  up  a  new  defense, 
but  to  perfect  his  plea  by  adding  some  additional  names  of  persons 
jointly  liable  that  had  been  omitted  and  by  striking  out  the  names  of 

13  Portions  of  the  opinion  are  omitted. 


oTO  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

others  that  had  been  erroneously  inserted,  which  apphcation  was  re- 
fused, because  a  plea  in  abatement,  being  a  dilatory  plea,  was  not  at 
common  law  amendable,^*  and  the  court  thought  that  the  provision  in 
the  Revised  Statutes  did  not  apply,  as  the  amendment  of  such  pleas, 
in  the  language  of  the  statutes,  was  not  "in  furtherance  of  justice." 
There  is,  therefore,  nothing  In  the  authorities  warranting  the  conclu- 
sion that  an  answer  cannot  be  amended  by  setting  up  a  new  and  dif- 
ferent defense ;  whilst  in  the  following  cases,  decided  both  before  and 
since  the  code,  the  defendant,  after  issue  joined,  was  allowed  to  amend, 
not  only  by  varying  an  existing  defense,  but  by  setting  up  a  new  de- 
fense. Dryden  v.  Langley,  Barnes,  22 ;  Prior  v.  The  Duke  of  Buck- 
ingham, 8  Moore,  584;  Hubert  v.  Steiner,  4  Moore  &  Scott,  328; 
Beardsley  v.  Storer,  7  How.  Prac.  294 ;  Harrington  v.  Slade,  22  Barb. 
161;  Macqueen  v.  Babcock,  13  Abb.  Prac.  268;  Van  Ness  v.  Bush, 
22  How.  Prac.  491 ;  Union  National  Bank  of  Troy  v.  Bassett,  3  Abb. 
Prac.  (N.  S.)  359 ;  Ford  v.  Ford,  53  Barb.  526. 

Judge  Monell  in  his  opinion  in  this  case  of  Woodruff  v.  Dickie  says 
that  an  amendment  is  the  correction  of  an  error  or  mistake  in  a  plead- 
ing already  before  the  court,  that  there  must  be  something  to  amend 
by,  and  that  the  insertion  of  facts  constituting  a  new  cause  of  action 
or  defense  is  a  substituted  pleading  and  not  an  amendment.  This  is 
a  very  narrow  definition  of  an  amendment,  and  is  not  warranted  either 
by  the  etymology  of  the  word,  nor  by  the  practice  respecting  amend- 
ments, as  it  has  existed  from  the  earliest  period. 

Originally  at  the  common  law  all  pleadings  were  oral  at  the  bar  of 
the  court,  and  were  amendable  for  defects  of  form  or  substance  at  any 
time  before  they  were  recorded  by  the  judges  as  the  foundation  for 
their  judgments  (Garner  v.  Anderson,  1  Str.  11;  Gilbert's  Common 
Pleas,  CX),  which  was  any  time  during  the  term,  and  by  a  statute  sub- 
sequently passed  (14  Edw.  Ill),  it  might  be  allowed  during  the  next 
term.  To  use  the  language  of  the  court  in  Rush  v.  Seymour  (10  Mod. 
88),  "If  any  error  were  spied  in  them,  it  was  presently  amended ;" 
that  is,  before  the  roll  of  that  term  was  made  up,  or  engrossed  as 
the  final  record  of  its  proceedings  (Blackmore's  Case,  8  Co.  157) ;  for, 
says  Coke  in  the  case  cited,  "during  the  term  the  record  is  in  the 
breast  of  the  court,  and  not  in  the  roll;"  or,  as  the  practice  is- more 
distinctly  set  forth  in  an  anonymous  case  in  3  Salk.  31,  in  which  it 
was  ruled  that  "whilst  the  declaration  is  in  paper,  the  court  may  give 
leave  to  amend  anything  in  it  at  pleasure,"  and  "during  the  term  might 
amend  any  mistake  in  the  roll  at  common  law ;  the  roll  being  only 
the  remembrance  of  the  court  during  the  term,"  but  that  "after  the 
term,  the  court  could  not  amend  any  fault  in  the  roll,  for  then  the 
record  is  not  in  the  breast  of  the  court,  but  in  the  roll  itself."  When 
the  record  for  the  term  was  made  up,  it  could  not  by  the  common  law, 

14  The  weight  of  authority  is  accord.  3  Ency.  L.  &  P.  623 ;  1  Ency.  PI.  & 
Pr.  519 ;   31  "Cyc.  424. 


Ch.  4)  CURING   DEFECTS  571 

under  heavy  penalties,  be  altered,  erased,  or  amended,  even  by  the 
judges,  unless  they  were  specially  authorized  to  do  so,  that  power  rest- 
ing exclusively  in  the  king  and  his  council.  Britton,  B.  I,  c.  1,  §  11. 
When  the  custom  of  oral  pleading  ceased,  and  all  pleadings  were  re- 
quired to  be  in  writing,  a  motion  to  amend  the  pleading  succeeded  to 
the  former  practice.  This  motion,  it  is  said  in  Rush  v.  Seymour, 
supra,  "the  court  cannot  refuse  whilst  the  pleadings  are  in  paper,"  that 
is,  before  they  were  entered  of  record ;  but  the  same  authority  states 
that  the  court  has  a  discretion,  and  may  refuse,  if  the  party  applying 
for  the  amendment  refuse  to  pay  costs,  or  the  amendment  amount  to 
a  new  plea,  the  word  "plea"  being  here  used  in  its  generic  sense,  as 
applicable  to  the  pleading  of  either  party.  The  course  of  procedure 
after  this  change  was  made,  and  the  nature  of  it,  is  thus  explained  by 
Chief  Justice  Parker  in  Garner  v.  Anderson,  Str.  11:  "The  founda- 
tion of  amendments  by  the  court  whilst  the  proceedings  remain  in 
paper,  before  they  be  recorded,  is  that  these  papers  delivered  to  and 
fro  supply  the  declaring  and  pleading  ore  tenus  at  the  bar,  and  may  be 
amended  as  easily  as  spoke  at  the  bar." 

The  pleadings  were  "in  paper"  until  the  record  or  rolls  for  the  trial 
were  made  up,  engrossed,  sealed  at  the  nisi  prius  office  and  docketed. 
1  Clerk's  Inst.  153 ;  2  Tidd's  Pr.  (9th  Ed.)  728. 

Up  to  this  time,  the  engrossment  and  sealing  of  the  plea  and  issue 
rolls,  the  greatest  liberality  appears  to  have  prevailed  in  allowing 
amendments,  especially  on  the  part  of  the  defendant,  except  where 
he  had  interposed  a  dilatory  plea,  such  as  a  plea  in  abatement  (Lepara 
v.  German,  1  Salk.  50),  or  where,  by  pleading  defectively  and  com- 
pelling the  plaintiff  to  demur,  the  plaintiff  had  lost  a  trial  (Jordan  v. 
Twells,  Cases  temp.  Hard.  171).  The  power  was  not  limited,  as 
Judge  Monell  supposes,  simply  to  a  correction  of  an  error  or  mistake 
in  a  pleading  already  before  the  court.  Baron  Gilbert,  the  very  highest 
authority  on  such  a  subject,  says  that  it  was  debated  amongst  the 
judges  at  Sergeant's  Inn  whether  a  plaintiff  could  amend  his  dec- 
laration after  the  defendant  demurred  and  the  plaintiff  had  joined  in 
demurrer,  and  he  says  that  their  conclusion  was  that  he  could,  if  the 
cause  were  still  in  paper,  on  payment  of  costs,  liberty  being  given  to 
the  defendant  to  change  his  plea ;  and  he  gives  the  reason  as  follows : 
"Because  the  pleading  in  paper  came  in  only  instead  of  the  ancient 
way  of  pleading  ore  tenus ;  and  in  the  pleading  ore  tenus  the  record 
was  only  in  fieri ;  and  therefore,  though  a  man  had  joined  in  demur- 
rer, he  might  come  before  that  was  entered  on  record  and  pray  to 
withdraw  his  demurrer  and  amend ;  but  after  the  pleadings  were  en- 
tered on  record  of  the  same  term,  then  it  could  not  be  altered  or  amend- 
ed." Gilbert's  Common  Pleas,  pp.  114,  115.  That  this  was  the  prac- 
tice appears  still  more  conclusively  from  a  case  in  2  Salk.  R.  520,  in 
which  it  is  said :  "Since  pleading  in  paper  is  now  introduced  instead 
of  the  old  way  of  pleading  ore  tenus  at  the  bar,  it  is  but  reasonable 


572  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

after  a  plea  to  issue  or  demurrer  joined,  that,  upon  payment  of  costs, 
the  parties  should  have  liberty  to  amend  their  plea,  or  to  waive  their 
plea,  or  demurrer,  while  all  proceedings  are  in  paper."  If  a  party 
therefore  may  waive  his  plea,  it  is  something  more  than  correcting  an 
error  or  mistake  in  a  plea  already  before  the  court.  It  is  what  Judge 
Monell  thinks  cannot  be  done,  for  he  says  a  pleading  containing  a 
new  defense  "is  a  substituted  pleading  and  not  an  amendment,"  but 
if,  as  these  early  authorities  show,  either  a  plaintiff  or  defendant  will 
be  allowed  to  amend  after  his  pleading  is  demurred  to",  by  substituting 
either  another  declaration  or  another  plea,  it  is  very  clear  that  Judge 
Monell's  impression  of  the  practice  was  erroneous. 

In  Prussett  v.  Martin,  Gilb.  C.  P.  113,  the  plaintiff  was  allowed  to 
amend  by  filing  a  new  bill,  although  there  was  nothing  to  amend  by ; 
and  in  the  cases  already  cited  (Waters  v.  Bovill,  1  Wils.  223 ;  Dryden 
V.  Langley,  Barnes,  22 ;  Prior  v.  The  Duke  of  Buckingham,  8  Moore, 
584;  and  Herbert  v.  Steiner,  4  Moo.  &  Scott,  328)  the  defendants 
were  allowed  to  add  additional  pleadings,  setting  up  separate  and 
distinct  defenses. 

The  word  "to  amend"  has  not  and  never  had,  either  etymologically 
or  legally,  such  a  restricted  sense  as  the  learned  judge  puts  upon  it. 
It  came  into  our  language  from  the  French  "amender,"  the  root  or 
parent  word  being  "menda,"  a  fault,  and  means  in  its  most  compre- 
hensive sense  "to  better."  It  is  so  defined  by  all  the  leading  lexi- 
cographers. Thus  in  Phillip's  New  World  of  Words,  and  in  Kersey, 
and  in  Bailey,  one  of  the  definitions,  is  "to  make  better" ;  by  Johnson 
"to  change  from  bad  for  the  better";  by  Webster  "to  change  in  any 
way  for  the  better  *  *  *  ^y  substituting  something  else  in  the 
place  of  what  is  removed."  As  a  law  term,  the  simple  definition  of 
amendment  given  by  Rastall,  Cowell  or  Blount,  our  earliest  expositors 
of  law  terms,  is  the  espying  out  of  some  error  in  the  proceedings 
and  the  correcting  of  it  before  judgment  and  after,  if  the  error  be  not 
in  the  giving  of  the  judgment,  the  remedy  in  that  case  being  by  writ  of 
error.  When,  therefore,  a  defendant  is  allowed  to  withdraw  a  plea 
or  answer,  because  it  does  not  set  up  the  defense  which  he  has,  and 
put  in  its  stead  a  plea  or  answer  which  does,  it  is  a  change  for  the 
better,  and  is  therefore  an  amendment  as  defined  by  the  lexicogra- 
phers ;  nor  is  the  statement  correct  that  an  amendment  can  be  allowed 
only  where  there  is  something  to  amend  by,  for  amendments  have  been 
allowed  where  that  objection  existed  and  the  point  was  expressly  taken. 
Carr  v.  Shaw,  7  Tenii  R.  299;  Rutherford  v.  Alein,  2  Smith,  K.  B. 
392;  Gilbert's  Com.  Pleas,  p.  116  (3d  Ed.).  Under  the  various  stat- 
utes of  jeofails,  enacted  to  relieve  the  prevailing  party,  notwithstand- 
ing certain  omissions  or  defects  in  the  record,  the  general  rule  was  that 
there  must  be  something  in  the  record  to  amend  by  or  to  enable  the 
statute  to  take  effect,  and  yet,  notwithstanding  this  general  rule,  Tidd 
says,  and  quotes  the  cases  in  support  of  his  statement,  that  the  courts 


Ch.  4)  CUEING   DEFECTS  573 

have  in  particular  instances  permitted  the  plaintiff  to  amend  his  dec- 
laration after  issue  joined,  in  cases  where  there  was  nothing  to  amend 
by.  Tidd's  Practice,  p.  713  (9th  Lond.  Ed.).  In  respect  to  the  plain- 
tiff's right  of  amendment,  the  court  did  impose  some  restriction,  even 
while  the  pleadings  were  in  paper,  for  the  reason  already  stated,  that 
the  plaintiff  can  sue  again.  Thus  he  would  not  be  allowed  to  amend 
his  declaration  after  two  terms  had  elapsed,  because  if  he  had  not 
declared  within  that  time,  the  cause  would  have  been  out  of  court, 
and  having  declared  defectively  they  gave  the  defendant  the  benefit  of 
the  time  that  had  elapsed,  treating  the  amendment  as  equivalent  to  a 
new  declaration.  For  this  reason  the  plaintiff  in  such  a  case  was  left 
to  sue  over  again.  But  this  reason  did  not  apply  to  pleas,  which  Tidd 
says  "may  be  amended  at  any  time  as  long  as  they  are  in  paper"  (1 
Tidd,  p.  708).  Nor  would  they  allow  an  amendment  changing  the 
nature  of  the  action,  but  would,  for  the  same  general  reason,  leave  the 
plaintiff  to  bring  another  action.  But  even  these  rules  were  not  strict- 
ly adhered  to ;  for  if  the  statute'  of  limitations  would  be  a  bar  to  a 
new  action,  they  would  allow  the  amendment  upon  terms ;  and  the 
restriction  that  the  plaintiff  would  not  be  allowed  to  amend  after 
two  terms  had  elapsed  was  in  course  of  time  greatly  relaxed  in  prac- 
tice. Bearcroft  v.  The  Hundred,  etc.,  3  Lev.  347;  Duchess  of  Marl- 
borough V.  Wignian,  Fitzg.  198;  Cope  v.  Marshall,  Sayre,  234;  Freen 
V.  Cooper,  6  Taunt.  358;  Horston  v.  Shilston,  6  Moore,  490;  Garway 
V.  Stevens,  Barnes,  19;  Tidd's  Practice,  pp.  697,  698.  But  I  no- 
where find,  except  where  he  pleaded  matter  in  abatement,  or  defec- 
tively for  the  purpose  of  delay,  that  any  restriction  was  ever  placed 
upon  the  defendant's  right  to  apply  for  an  amendment  of  his  plead- 
ing whilst  the  pleadings  were  in  paper,  whether  it  related  to  his  set- 
ting up  an  additional  defense  or  not,  and  it  would  be  very  unjust  if 
it  were  so;  for,  as  I  have  said,  he  must  avail  himself  of  his  defense 
if  he  have  any,  in  the  action  brought  against  him,  and  the  reason  given 
in  the  plaintiff's  case  that  he  may  sue  again  is  in  no  way  applicable 
to  the  defendant's  case.  When  the  pleadings  were  made  up  in  the 
form  of  a  record,  the  practice  was  more  strict ;  but  even  then  amend- 
ments would  be  allowed  in  the  discretion  of  the  court,  if  there  were 
anything  to  amend  by  (Barnes,  3,  7,  10;  2  Clerks'  Instruction,  206, 
207) ;  for  then  an  amendment  involved  an  erasure  or  alteration  of 
what  was  on  record,  for  the  plea  and  the  issue  rolls  were  carefully 
engrossed,  sealed  and  docketed  with  the  clerk,  as  was  also  the  nisi 
prius  record;  the  latter  being  in  the  nature  of  a  commission  to  the 
judges  for  the  trial  of  the  issue  which  was  also  sealed  and  entered, 
forming  with  the  rolls,  when  all  this  was  done,  a  portion  of  the  record 
in  the  cause.  This  was  the  practice  formerly  in  this  state  (Wyches' 
Practice,  146;  Caines'  Practice,  502);  but  it  has  long  since  been  abro- 
gated. Under  the  code  the  clerk,  after  entering  judgment,  simply 
attaches  all  the  necessary  papers  together  and  files  them  as  the  judg- 


574  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

ment  roll  in  the  cause;  so  that  until  the  clerk  enters  the  judgment  the 
pleadings  are  with  us,  to  use  the  English  term,  still  "in  paper."  Up  to 
this  time,  or  rather  up  to  the  time  of  the  trial,  no  inconvenience  to  the 
court  can  arise  from  allowing  them  to  be  amended  upon  terms,  and 
any  reasons  which  may  have  heretofore  existed  under  the  early  prac- 
tice in  this  State  and  in  England  for  restricting  the  power  of  amend- 
ment, upon  the  ground  that  the  rolls  had  become  a  part  of  the  record, 
are  no  longer  of  any  force,  as  there  is  now  no  such  course  of  pro- 
cedure. 

The  courts  were  at  first  very  strict  in  permitting  amendments  of 
anything  that  had  taken  the  form  of  a  record,  for  records  in  England 
were  made  up  with  great  formality,  and  much  importance  was  at- 
tached to  their  being  preserved  without  change  or  erasure.  At  first 
they  were  not  allowed  to  be  altered  at  all,  then  only  for  mistakes  made 
by  the  clerks;  but  afterwards,  as  was  said,  "in  furtherance  of  justice 
and  to  obtain  right  between  the  parties,"  the  amendment  of  them  was 
greatly  extended.  The  King  v.  Ellames,  Cases  Temp.  Hardw.  48. 
Lord  Hardwicke  says,  in  Jordan  v.  Twells  (Cases  Temp.  Hardw.  171), 
"Formerly  in  all  amendments  the  party  was  to  show  that  the  proceed- 
ings were  all  in  paper,  though  of  late  that  has  been  got  over."  And 
finally  the  power  was  so  much  extended  that  in  The  King  v.  The 
Mayor,  etc.,  of  Grampond,  7  Term.  R.  703,  Lord  Kenyon  says  that, 
where  the  defect  does  not  come  under  any  of  the  statutes  of  jeofails, 
but  the  allowance  is  made  under  the  general  authority  of  the  court,  each 
particular  case  must  be  left  to  the  discretion  of  the  court.  He  re- 
iterates the  wish  expressed  by  Lord  Hardwicke,  that  "these  amend- 
ments were  reduceable  to  some  certain  rules,"  which  he  considers 
equivalent  to  declaring  that  there  are  none,  and  he  then  says  that  the 
best  principle  seems  to  be  that  on  which  Lord  Hardwicke  relied,  "that 
an  amendment  shall  or  shall  not  be  permitted  to  be  made  as  it  will  best 
tend  to  the  furtherance  of  justice."  This  is  brushing  away  all  pre- 
vious distinctions,  and  prescribing  as  the  only  criterion  that  which  is 
adopted  in  the  Revised  Statutes,  that  "the  court  in  which  any  action 
is  pending  shall  have  power  to  amend  any  process,  pleading,  or  pro- 
ceeding, either  in  form  or  substance,  for  the  furtherance  of  justice, 
upon  such  terms  as  shall  be  just."  2  Rev.  St.  (1st  Ed.)  pt.  3,  c:  7,  tit. 
5,  §  1.  This  was  certainly  broad  and  comprehensive  enough  to  in- 
clude all  cases.  It  was  limited,  however,  to  amendments  before  judg- 
ment, and  the  codifiers  evidently  meant  tO  make  it  more  comprehen- 
sive, so  as  to  embrace,  also,  all  cases  after  judgment,  *  *  *  Under 
either  the  Revised  Statutes  or  the  code,  there  is  no  doubt  in  my  mind 
of  the  power  of  the  court  to  allow  an  amendment  setting  up  a  new  or 
different  defense  at  any  time  before  trial,  if  it  be  in  furtherance  of 
justice.  *  *  *  In  the  present  case,  the  defendant's  attorney  swears 
that  he  had  supposed  that  under  his  general  denial  he  would  be  able 
to  set  up  as  a  defense  that  the  plaintiff  had  forfeited  the  policy  by 


I 


Ch.  4)  CURING   DEFECTS  575 

the  breach  of  the  covenant  respecting  additional  insurance,  but  that 
he  is  now  advised  by  counsel  that  that  is  very  doubtful,  and  that,  to 
put  it  beyond  question,  it  is  safer  to  set  up  that  defense  specifically 
in  the  answer.  It  is  upon  this  ground  that  an  amendment  of  the  an- 
swer is  asked  for.  The  application  is  a  reasonable  one,  and  ought  to 
be  granted.  It  will  involve  the  service  of  a  new  answer,  and,  as  the 
plaintiff  has  already  been  put  to  great  delay  in  the  time  consumed  in 
the  examination  of  witnesses  out  of  the  state  upon  commissions,  it  will 
have  to  be  upon  the  payment  of  such  costs  as  may  have  accrued  since 
the  former  answer  was  put  in. 
Motion  granted. 


NEWAIvL  V.  HUSSEY. 
(Supreme  Judicial  Court  of  Maine,  1841.     18  Me.  219,  36  Am.  Dec.  717.) 

Exceptions  from  the  ]\Iiddle  District  Court,  Redington,  J,,  presid- 
ing. 

The  declaration  was  only  on  an  account  annexed  to  the  writ.  After 
the  action  had  been  entered  in  court,  and  continued  several  terms,  the 
plaintiff  offered  as  amendments,  under  a  general  leave  to  amend  en- 
tered at  the  first  term:  1.  The  money  counts.  2.  Insimul  computas- 
sent.  3.  A  count  on  a  note  given  by  the  defendant  to  the  plaintiff,  or 
his  order  payable  on  demand,  with  interest,  dated  August  22,  1838. 
The  defendant  resisted  the  proposed  amendments,  and  objected  to  the 
introduction  of  the  note.  It  was  admitted,  that  the  note  was  given  in 
settlement  of  the  account  in  suit.  Redington,  J.,  allowed  the  plaintiff 
to  file  a  count  for  money  had  and  received,  and  one  upon  the  note. 
To  this  the  defendant  excepted. 

SheplEy,  J.  By  the  law  of  this  state,  a  debt  due  on  account  is 
considered  as  paid  and  the  contract  extinguished  by  taking  a  negotia- 
ble promissory  note  for  the  amount.  While  the  common  law  regards 
it  only  as  security  for  an  existing  debt,  the  note  is  here  evidence  of  a 
new  and  different  contract  unless  the  contrary  is  made  to  appear. 

The  letter  of  the  defendant,  under  date  of  November  21st,  does  ad- 
mit that  the  note  originated  from  the  account  sued ;  it  does  not,  how- 
ever, rebut,  but  rather  confirms,  the  presumption  of  law  that  it  was 
received  in  discharge  of  the  previous  contract. 

If  the  original  contract  no  longer  existed  after  taking  the  note,  it 
would  seem  to  follow  that  the  note  must  be  a  new  cause  of  action. 
And  so  it  has  been  decided  to  be  in  Massachusetts  where,  the  like  rule 
of  law  prevails.     Vancleef  v.  Therasson,  3  Pick.  (Mass.)  12. 

In  our  practice  amendments  are  not  permitted  to  introduce  a  new 
cause  of  action.  It  is  within  the  discretion  of  the  judge  of  the  Dis- 
trict Court  to  permit  am.endments  in  all  cases  where  by  law  the  writ  or 
declaration  is  amendable;  and  this  court  does  not  revise  that  exercise 


576  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

of  discretion.  But  if  an  amendment  be  permitted  which  the  law  does 
not  authorize,  the  party  has  a  right  to  except. 

This  amendment  must  be  regarded  as  unauthorized,  because  it  in- 
troduces a  new  cause  of  action. 

Exceptions  sustained  and  plaintiff  nonsuited.^" 


NEUBECK  V.  LYNCH. 

(Court  of  Appeals  of  District  of  Columbia,  1911.     37  App.  D.  C.  576,  37 
L.  R.  A.  [N.  S.]  813.) 

The  court  in  the  opinion  stated  the  facts  as  follows : 

This  is  an  action  for  the  recovery  of  damages  for  the  alleged  negli- 
gent killing  of  one  William  Moore  on  February  13,  1909.  The  action 
is  brought  by  Francis  L.  Neubeck,  the  administrator  of  the  estate  of 
the  deceased,  William  Moore.  The  declaration  is  in  two  counts,  charg- 
ing, in  substance,  that  the  death  of  Moore  was  caused  by  the  discharge 
of  a  loaded  pistol  negligently  handled  by  defendant,  Patrick  J.  Eynch, 
and  concluding,  "to  the  damage  of  plaintiff  in  the  sum  of  $10,000." 
On  March  9,  1911,  plaintiff,  by  leave  of  court,  amended  the  declara- 
tion by  inserting  in  the  proper  connection  the  following:  "Plaintiff's 
decedent  left  surviving  him  a  widow  and  four  minor  children,  whose 
sole  support  he  was,  and  by  his  death  as  aforesaid  they  were  damaged 
in  the  sum  of  $10,000;  wherefore  plaintiff  brings  this  suit  under  sec- 
tions 1301  and  1302  of  the  Code  of  the  District  of  Columbia  (31  Stat. 
1394,  c.  854),  and  demands  judgment,"  etc. 

To  the  amended  declaration  defendant  entered  pleas  of  not  guilty 
and  of  the  bar  of  the  statute  of  limitations.  Plaintiff  demurred  to  the 
plea  of  limitations.  The  court  overruled  the  demurrer,  and,  plaintiff' 
electing  to  stand  upon  the  demurrer,  judgment  was  entered  for  de- 
fendant. 

Van  Orsdul,  J.,  delivered  the  opinion  of  the  court:  This  is  a 
statutory  proceeding.  In  an  action  for  damages  for  negligently  caus- 
ing the  death  of  a  person,  the  statute  provides  that  the  action  shall  be 
brought  "in  the  name  of  the  personal  representative  of  such  deceased 
person,  and  within  one  year  after  the  deatli  of  the  party  injured" ;  that 
"such  damages  shall  be  assessed  with  reference  to  the  injury  resulting 
from  such  act,  neglect,  or  default  causing  such  death,  to  the  widow 

15  Givens  v.  Wheeler.  5  Colo.  598  (1881) ;  Willo'ughby  v.  Atkinson  Furnish- 
ing Co.,  93  Me.  185,  44  Atl.  612  (1899) ;  Silver  v.  Jordan,  139  IMass.  280,  1  N. 
E.  280  (1885) ;  Angell  v.  Pruyu,  126  ftlich.  16,  85  N.  W.  258  (1901) ;  People  v. 
Judges,  1  Dougl.  (Mich.)  434,  442-447  (1844:  one  reason);  Pearson  v.  Smith, 
54  N.  H.  65  (1873) ;  Tatham  v.  Ramey,  82  Pa.  130  (1876) ;  Thayer  v.  Fan-ell, 
11  R.  I.  305  (1876) ;  Brodeli  &  Co.  v.  Hirschtield,  57  Vt.  12  (1885) ;  Snyder  v. 
Harper,  24  W.  Va.  206  (1884).  Accord.  Smith  v.  Barker,  3  Day  (Conn.)  312, 
Fed.  Cas.  No.  13,013  (1809) ;  Philadelphia,  etc.,  Co.  v.  Gatta,  4  Boyce  (Del.)  38, 
85  Atl.  721,  47  L.  R.  A.  (N.  S.)  932  (1913j ;  Chicago,  etc.,  Co.  v.  Stein,  75  111. 
41  (1874);  Adams  Oil  Co.  v,  Christmas,  101  Ky.  564,  41  S.  W.  &45  (KS97). 
Contra. 


Ch.  4)  CURING   DEFECTS  577 

and  next  of  kin  of  such  deceased  person ;"  and  that  "the  damages  re- 
covered in  such  action  shall  not  be  appropriated  to  the  payment  of  the 
debts  or  liabilities  of  such  deceased  person,  but  shall  inure  to  the 
benefit  of  his  or  her  family,  and  be  distributed  according  to  the  pro- 
visions of  the  statute  of  distribution  in  force  in  the  said  District  of 
Columbia."    D.  C.  Code,  §§  1301-1303. 

The  original  declaration  is  assailed  on  the  ground  that  it  failed  to 
state  a  cause  of  action,  because  the  beneficiaries  were  not  named.  It 
is  conceded  that  the  defect  was  cured  by  the  amendment,  but,  as  the 
amendment  was  not  filed  within  the  one  year  allowed  for  the  bringing 
of  the  action,  it  came  too  late.  Therefore,  the  sole  question  presented 
is  whether  the  amendment  stated  a  new  cause  of  action?  If  the 
amendment  simply  related  back  to  and  cured  the  cause  of  action 
defectively  stated  in  the  original  declaration,  the  bar  of  the  statute 
cannot  be  invoked  as  a  defense. 

The  primary  cause  of  action  consists  in  the  charge  that  appellee 
negligently  killed  appellant's  intestate  in  the  manner  described  in  the 
original  petition.  The  allegation  of  the  existence  of  beneficiaries  with- 
in the  statute  is  undoubtedly  essential  to  the  right  of  recovery,  and, 
as  generally  held  by  the  courts,  a  verdict  will  not  support  a  judgment 
or  be  sustained  in  its  absence.  But  neither  the  cause  of  action  nor  the 
jurisdiction  of  the  court  depends  entirely  upon  the  naming  of  the 
beneficiaries.  Without  them  the  cause  of  action  is  at  most  defectively 
stated.  That  jurisdiction  existed  was  sufficiently  shown  in  the  origi- 
nal petition. 

Closely  analogous  to  the  case  at  bar  are  a  number  of  federal  cases 
construing  the  bankruptcy  act,  which  provides  that  the  person  whom 
it  is  sought  to  have  adjudged  an  involuntary  bankrupt  must  not  be  "a 
wage-earner  or  a  person  engaged  chiefly  in  farming  or  the  tillage  of 
the  soil."  Act  July  1,  1898,  c.  541,  §  4,  30  Stat.  547  (U.  S.  Comp.  Stat. 
1913,  §  9588).  Also  those  construing  the  provision -that  requires  as  a 
condition  precedent  to  the  right  of  the  petitioner  to  file  his  petition  an 
averment  setting  forth  the  number  of  creditors.  30  Stat.  561,  c.  541 ; 
Re  Pilger  (D.  C.)  118  Fed.  206;  Re  Bellah  (D.  C.)  116  Fed.  69;  Beach 
V.  Macon  Grocery  Co.,  57  C.  C.  A.  150,  120  Fed.  736;  Re  Brett  (D.  C.) 
130  Fed.  981;  Re  :\Iero  (D.  C.)  128  Fed.  630;  Re  Plymouth  Cordage 
Co.,  68  C.  C.  A.  434,  135  Fed.  1000;  Re  Broadway  Savings  Trust  Co., 
81  C.  C.  A.  58,  152  Fed.  152;  Re  Haff,  68  C.  C.  A.  646,  136  Fed.  78; 
First  State  Bank  v.  Haswell,  98  C.  C.  A.  217,  174  Fed.  209. 

The  general  rule,  as  repeatedly  stated  by  the  federal  courts,  is  "that 
an  amendment  to  a  petition  which  sets  up  no  new  cause  of  action, 
*  *  *  but  merely  amplifies  and  gives  greater  precision -to  the  alle- 
gations in  support  of  the  cause  of  action  *  *  *  originally  pre- 
sented, relates  back  to  the  commencement  of  the  action."  Crotty  v. 
Chicago,  G.  W.  R.  Co.,  95  C.  C.  A.  91,  169  Fed.  593,  and  cases  cited. 
In  First  State  Bank  v.  Haswell,  98  C.  C.  A.  217,  174  Fed.  209,  the 
court,  referring  to  this  rule,  said :    "This  rule  is  also  applicable  to  cas- 


578  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

es  where  jurisdictional  facts  which  existed  at  the  time  the  original 
petition  was  filed  are  subsequently  made  to  appear  for  the  first  time 
by  an  amendment."  In  Ryan  v.  Hendricks,  92  C.  C.  A.  78,  166  Fed. 
94,  the  court,  applying  the  rule  to  a  bankruptcy  case,  said:  "The 
amendments  related  to  the  number  of  the  petitioning  creditors  and  the 
amount  and  nature  of  their  claims,  and  to  the  occupation  of  the  debtor. 
There  is  no  doubt  that  at  the  time  the  original  petition  was  filed 
Longerman  was  a  bankrupt,  and  all  the  conditions  existed  which  made 
it  proper  for  his  estate  to  be  administered  under  the  bankruptcy  law. 
If  the  original  petition  failed  to  set  forth  these  conditions  fully  and 
clearly,  the  court  did  right  in  allowing  the  amendments,  and  the  amend- 
ments, when  made,  related  back  to  the  time  of  the  filing  of  the  original 
petition,  and  had  the  same  efifect  as  if  originally  incorporated  therein." 
Where  large  property  rights  are  liable  to  be  involved  in  the  priority  of 
liens  and  the  rights  of  judgment  creditors  attaching  within  four 
months  of  the  commencement  of  the  bankruptcy  proceedings,  it  might 
be  assumed  that  a  strict  rule  of  pleading  would  be  invoked;  but  on  the 
contrary  a  very  liberal  and  sensible  rule  has  been  adopted. 

Conceding,  as  we  must,  that  the  averment  setting  forth  the  benefi- 
ciaries is  one  of  the  ingredients  necessary  to  state  a  cause  of  action  in 
a  suit  for  the  wrongful  and  negligent  killing  of  a  person,  it  is,  never- 
theless, but  one  of  the  elements,  and  does  not,  of  itself,  constitute  the 
cause  of  action  or  a  separate  cause  of  action.  The  averment  is  es- 
sential, together  with  other  allegations  of  the  petition,  to  state  a  proper 
cause  of  action.  Its  omission  merely  results  in  stating  a  defective 
cause  of  action,  which  may  be  cured  by  an  amendment,  which  will 
relate  back  in  point  of  time  to  the  filing  of  the  original  petition.  Love 
V.  Southern  R.  Co.,  108  Tenn.  104,  65  S.  W.  475,  55  L.  R.  A.  471 ; 
Geroux's  Adm'r  v.  Graves,  62  Vt.  280,  19  Atl.  987 ;  BurHngton  &  M. 
R.  Co.  v.  Crockett,  17  Neb.  570,  24  N.  W.  219;  Walker  v.  Lake  Shore 
&  M.  S.  R.  Co.,  104  Mich.  606,  62  N.  W.  1032. 

Counsel  for  appellee  has  cited  many  cases  where  it  has  been  held 
that  a  petition  which  does  not  name  the  beneficiaries  in  an  action  based 
upon  a  statute  similar  to  ours  is  so  defective  that  it  will  not  support  a 
verdict ;  but  that  does  not  argue  that  the  defect  may  not  be  cured  by 
amendment  before  verdict  and  judgment.  On  the  other  hand,  the 
courts  of  a  number  of  states  whose  decisions  are  entitled  to  the  high- 
est respect  support  appellee's  contention  that  a  petition  so  amended 
states  a  new  cause  of  action.  The  question  is  one  involved  in  diffi- 
culty, but  we  are  constrained  to  adopt  the  liberal  rule.  Indeed,  this 
court  has  established  a  liberal  rule  as  to  the  right  of  amendment,  in 
order  that  the  ends  of  justice  may  be  attained.  Steven  v.  Saunders, 
34  App.  D.  C.  321. 

In  District  of  Columbia  v.  Frazer,  21  App.  D.  C.  154,  an  amended 
declaration  was  filed  after  the  bar  of  the  statute  of  limitations  had 
run,  dismissing  a  codefendant,  omitting  acts  of  negligence  originally 
alleged,  and  charging  new  and  different  acts  of  negligence.    The  court, 


Ch.  4)  CUEING    DEFECTS  579 

sustaining  the  right  of  amendment,  said:  "Where,  as  in  this  case, 
there  has  been  a  substitution  of  the  original  declaration  by  an  amend- 
ment, the  test  is  whether  the  cause  of  action  remains  the  same  in  sub- 
stance, notwithstanding  differences  of  specification.  Howard  v.  Ches- 
apeake &  O.  R.  Co.,  11  App.  D.  C.  330,  336;  Texas  &  P.  R.  Co.  v.  Cox, 
145  U.  S.  593,  604,  12  Sup.  Ct.  905,  36  L.  Ed.  829,  833.  Applying  this 
test,  we  are  of  opinion  that  there  was  no  error  in  overruling  the  plea 
of  limitation.  The  foundation  of  the  action  in  both  pleadings  is  the 
negligence  of  the  defendant  in  the  performance  of  its  duty  to  keep  its 
sidewalks  in  a  safe  condition."  So  here  the  foundation  of  the  action 
in  both  the  original  and  amended  petitions  is  the  negligent  shooting 
of  appellant's  intestate  by  the  appellee. 

In  the  recent  case  of  Texas  &  N.  O.  R.  Co.  v.  Miller,  221  U.  S.  408, 
31  Sup.  Ct.  534,  55  L.  Ed.  789,  suit  was  brought  in  Texas  to  recover 
damages  for  a  death  caused  by  the  alleged  negligence  of  the  railroad 
company  in  Louisiana.  The  Louisiana  statute,  like  ours,  required  the 
action  to  be  brought  within  one  year.  The  courts  of  Texas,  under  the 
prevailing  rule  in  the  state,  refuse  to  take  judicial  cognizance  of  the 
statutes  of  other  states,  unless  pleaded.  The  petition  was  filed  within 
the  year,  but  failed  to  set  out  the  Louisiana  statute  under  which  the 
suit  was  brought.  After  the  year  had  expired  the  defendant  company 
answered,  setting  up  the  statute.  The  Texas  court  held  that  the  an- 
swer cured  the  defect  in  the  petition,  which  holding  was  affirmed  by 
the  Supreme  Court.  If  a  defect  so  vital  as  the  failure  to  plead  a  stat- 
ute upon  which  the  cause  of  action  is  based  could  be  cured  by  an- 
swer, it  must  follow  logically  that  it  could  have  been  cured  by  amend- 
ment. There  the  statute  of  Louisiana  was  required  to  be  pleaded  as  a 
condition  precedent  to  recovery.  Here  the  beneficiaries  under  the  stat- 
ute must  be  named  in  the  declaration  as  a  condition  of  recovery. 

The  original  judiciary  act,  Act  Sept.  20,  1789,  c.  20,  §  32,  1  Stat.  91, 
(U.  S.  Comp.  St.  1913,  §  1591),  provides  that  no  proceeding  in  civil 
cases  in  any  court  of  the  United  States  "shall  be  abated,  arrested, 
quashed,  or  reversed  for  any  defect  or  want  of  form ;  but  such  court 
shall  proceed  and  give  judgment  according  as  the  right  of  the  cause 
and  matter  in  law  shall  appear  to  it,  without  regarding  any  such  defect 
or  want  of  form,  except  those  which,  in  cases  of  demurrer,  the  party 
demurring  specially  sets  down  together  with  his  demurrer,  as  the 
cause  thereof ;  and  such  court  shall  amend  every  such  defect  and  want 
of  form,  other  than  those  which  the  party  demurring  so  expresses ; 
and  may  at  any  time  permit  either  of  the  parties  to  amend  any  defect 
in  the  process  or  pleadings,  upon  such  conditions  as  it  shall,  in  its  dis- 
cretion and  by  its  rules,  prescribe."  From  thi^  it  will  be  observed  that 
in  the  establishment  of  the  federal  courts  a  most  liberal  rule  of  plead- 
ing was  enjoined  by  statute.  It  should  not  be  the  policy  of  the  courts 
to  defeat  justice  by  indulging  in  mere  technicalities  and  fine-spun  the- 
ories of  pleading.  Where  an  amendment  does  not  operate  totally  to 
confer  jurisdiction,  or  to  change  the  cause  of  action  or  shift  the  right 


580  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

of  action,  but  merely  supplies  an  additional  element  essential  to  a 
proper  statement  of  a  cause  of  action  defectively  stated,  or  an  addi- 
tional jurisdictional  averment  essential  to  clothe  the  court  w^ith  com- 
plete power  to  conduct  the  suit  to  a  legal  conclusion,  it  should  be  al- 
lowed. 

The  judgment  is  reversed,  with  costs,  and  remanded  for  further 
proceedings. 

Reversed.^® 


COXE  V.  TILGHMAN. 
(Supreme  Court  of  Pennsylvania,  1835.     1  Whart.  282.) 

Ssrge;ant,  J.^''  It  was  settled  soon  after  the  passing  of  the  act 
of  the  21st  of  March,  1806,  that  the  plaintiff  is  entitled  to  amend  his 
declaration  or  add  a  new  count  at  any  time  before  or  during  the  trial 
of  the  cause,  provided  he  do  not  introduce  a  new  cause  of  action.  But 
what  amendment  does  introduce  a  new  cause  of  action  has  given  rise 
to  frequent  controversies ;  and  in  many  instances  the  amendment  has 
been  refused  as  not  coming  within  the  limit  prescribed.  An  exami- 
nation of  the  decided  cases  will  show  that  in  actions  ex  contractu,  so 
long  as  the  plaintiff  adheres  to  the  original  instrument  or  contract  on 
which  the  declaration  is  founded,  an  alteration  of  the  grounds  of  re- 
covery on  that  instrument  or  contract,  or  of  the  modes  in  which  the 
defendant  has  violated  it,  is  not  an  alteration  of  the  cause  of  action. 
In  an  action  on  a  policy  of  insurance,  when  the  plaintiff  declared  on 
losses  by  capture  by  an  enemy  and  perils  of  the  sea,  the  court  per- 
mitted an  amendment  by  adding  a  count  for  a  loss  by  barratry.  The 
object  of  the  action,  says  Tilghman,  C.  J.,  was  to  recover  for  a  loss 
covered  by  the  policy,  and  this  amendment  did  not  go  out  of  the  policy. 
Anon,  cited  by  Tilghman,  C.  J.,  in  Rodrigue  v.  Curcier,  15  Serg.  & 
R.  83.     So  in  Cassell  v.  Cooke,  8  Serg.  &  R.  268,  11  Am.  Dec.  610, 

16  The  great  weight  of  authority  is  in  accord  with  this  case.  See  cases  col- 
lected in  3  L.  B.  A.  (N.  S.)  297-304 ;  33  L.  R.  A.  (N.  S.)  196 ;  47  L.  R.  A.  (N. 
S.)  932. 

"The  rule  is  established  in  this  state  that  the  statute  of  limitations  expir- 
ing after  the  commencement  of  an  action  bars  recovery  upon  an  amended 
pleading  aftei-wards  put  in,  where  the  original  pleading  fails  to  state  a  cause 
of  action;  or,  stated  in  other  words,  the  rule  is  that,  when  a  plaintiff  in  his 
original  declaration  filed  before  the  statute  of  limitations  has  run  against  his 
cause  of  action  fails  to  aver  any  cause  of  action  whatever,  and  afterwards, 
wdien  the  statute  has  run,  files  an  amended  declaration  with  new  and  addi- 
tional counts  which  do  set  up  a  cause  of  action,  such  new  counts  must  be 
held  to  state  a  new  cause  of  action — one  never  before  stated  and  one  that  isi 
barred  by  the  statute."  Vickers,  J.,  in  Bahr  v.  National,  etc.,  Co.,  234  111. 
101,  103,  84  N.  E.  717  (1908).  But  even  though  a  declaration  may  be  demur- 
rable, if  it  defectively  states  a  good  cause  of  action,  it  may  be  amended,  and 
the  amendment  will  not  be  subject  to  the  bar  of  the  statute.  Salmon  v.  Libby,. 
219  111.  421,  76  N.  E.  573  (1905). 

IT  The  statement  of  facts  is  omitted. 


Ch.  4)  CURING  DEFECTS  581 

in  debt,  the  declaration  stated  an  agreement  of  the  10th  of  August, 

1813,  that  Cooke  should  sell  to  Cassell  an  estate,  for  which  Cassell 
covenanted  to  pay  $325  per  acre,  viz.  one-third  on  the  10th  of  April, 

1814,  one-third  on  the  10th  of  April,  1815,  and  one-third  on  the  10th 
of  April,  1816,  without  interest.  Cook  covenanted  to  deliver  to  Cas- 
sell a  good  and  sufficient  deed  on  the  10th  of  April,  1814,  when  Cassell 
was  to  give  his  bond  for  the  remaining  two-thirds,  with  security,  if 
required.  Possession  was  to  be  given  to  Cooke  on  the  10th  of  April, 
1814,  and  the  parties  were  bound  in  a  penalty  of  $100,000.  Aver- 
ments of  performance  by  plaintiff.  After  the  jury  were  sworn  and 
some  progress  made  in  the  trial,  the  plaintiff  requested  leave  to  add  a 
new  count,  setting  forth  that  the  deed  was  not  executed  on  the  10th  of 
April,  1814,  at  the  defendant's  request,  in  consequence  of  his  inability 
to  comply  with  his  covenants ;  that  it  was  understood  the  articles  re- 
mained in  force,  and  the  defendant  paid  various  sums  to  the  plaintiff 
in  part  performance;  that  on  the  13th  of  January,  1816,  a  good  and 
sufficient  deed  was  executed,  which  the  plaintiff  tendered  to  the  de- 
fendant on  or  about  the  31st  of  January,  1816.  This  was  objected  to 
by  the  defendant,  but  admitted,  and  on  error  brought  was  held  to  be 
right.  "It  was,"  says  Mr.  Justice  Duncan,  "the  assignment  of  a  breach 
of  the  same  covenant,  on  the  same  instrument,  to  be  covered  by  the 
same  penalty."  So  in  Shannon  v.  Commonwealth,  8  Serg.  &  R.  444, 
it  was  held  that  in  an  action  on  a  sheriff's  bond,  the  plaintiff  might 
amend  his  declaration  by  assigning  new  breaches  of  the  condition  of 
the  bond.  "The  new  breach,"  says  C,  J.  Tilghman,  "related  to  the  neg- 
lect or  non-performance  of  Shannon's  duty  as  sheriff."  And  in  that 
case  the  Chief  Justice  states  the  very  point  now  in  question  to  have 
been  already  decided,  for  he  says,  "It  has  been  determined  that,  under 
our  act  of  assembly,  the  court  may  permit  the  plaintiff  in  an  action  of 
covenant,  to  assign  new  breaches." 

In  Cunningham  v.  Day,  2  Serg.  &  R.  1,  the  declaration  was  in  in- 
debitatus assumpsit  for  money  had  and  received.  It  appeared  on  the 
trial  that  the  plaintiff  gave  the  defendant  a  mare  and  $25  in  exchange 
for  a  horse.  The  horse  turned  out  to  have  been  stolen,  and  the  plain- 
tiff was  obliged  to  give  him  up  to  the  owner.  The  defendant  had  sold 
the  mare  for  a  tract  of  land  and  $25.  The  court  holding  that  the 
plaintiff'  could  only  recover  the  $50  received  by  the  defendant  without 
interest,  the  plaintiff  had  leave  to  amend  by  a  new  count  founded  on 
the  special  contract.  This  on  error  was  held  right,  and  Tilghman,  C. 
J.,  says:  "This  was  no  change  of  the  cause  of  action.  The  plaintiff 
had  been  mistaken  in  the  form  of  his  declaration,  but  it  was  the  injury 
from  the  stolen  horse  for  which  he  sought  redress."  So  where  the 
plaintiff  declared  in  assumpsit  for  breach  of  promise  to  convey  land, 
it  was  held  he  might  amend  by  setting  forth  again  the  breach  of  con- 
tract, blended  with  complaints  of  fraud.  Cavene  v.  McAIichael,  8 
Serg.  &  R.  441.    In  Rodrigue  v.  Curcier,  15  Serg.  &  R.  81,  the  wrong 


582  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

complained  of  by  the  plaintiff,  and  for  which  he  sought  redress,  was 
the  defendant's  misconduct  as  his  agent  in  the  sale  of  certain  cottons 
consigned  to  him.  This  misconduct  was  set  forth  in  various  forms  by 
the  original  declaration,  and  the  plaintiff  asked  leave  to  add  several 
other  forms  tending  to  the  same  point.  The  substance  of. the  same 
complaints  was  preserved  in  all  those  forms ;  that  the  plaintiff  had 
been  injured  by  the  defendant's  mismanagement  in  the  business  com- 
mitted to  him ;  and  the  amendment  was  allowed.  In  Gratz  v.  Phillips, 
1  Bin.  588,  the  writ  and  narr.  in  account  render  stated  the  defendant 
as  bailiff  and  receiver  of  A.  A  new  count  was  permitted,  describing 
the  plaintiff  as  surviving  partner,  and  his  interest  as  having  been  held 
jointly  with  a  certain  B.,  deceased.  On  the  other  hand,  where  a  new 
instrument  or  contract  is  introduced  as  a  ground  of  action,  the  amend- 
ment is  not  permitted.  Thus  in  Farmers'  Bank  v.  Israel,  6  Serg.  &  R. 
294,  the  suit  was  against  the  defendant  as  indorser  of  two  promissory 
notes.  It  appeared  on  the  trial  that  the  notes  were  not  due ;  and  it  was 
held  that  an  amendment  introducing  five  other  notes  entirely  different 
was  not  admissible.  So  in  Newlin  v.  Palmer,  11  Serg.  &  R.  98,  the 
plaintiffs  declared  on  a  demise  by  them  to  the  defendant  of  a  gristmill 
and  tract  of  land,  from  the  1st  of  April,  1814,  for  one  year,  at  the 
rent  of  $375.  Afterwards,  by  leave  of  court,  they  filed  an  additional 
count,  alleging  that  the  defendant  after  the  expiration  of  the  last  men- 
tioned term,  viz.  from  the  1st  of  April,  1815,  continued  to  occupy  the 
demised  premises  as  tenant  to  the  plaintiffs  until  the  1st  of  April,  1816, 
whereby  he  became  liable  to  pay  an  additional  $375.  "Here,"  says 
Mr.  Justice  Duncan,  "the  matter  was  entirely  new,  it  was  a  continua- 
tion of  possession  for  another  year  by  the  permission  and  sufferance 
of  the  plaintiffs.  The  first  declaration  gave  the  defendant  no  notice 
of  preparation  fpr  the  second  year;  as  well  might  the  plaintiff  have 
added  a  new  count  on  a  bond;"  and  the  judgment  was  reversed.  In 
Canal  Company  v.  Parker,  4  Yeates,  363,  the  declaration  having  laid 
that  the  defendant  was  indebted  to  the  plaintiff's  for  subscription  to  a 
canal  company  with  interest ;  a  new  count  was  refused,  which  demand- 
ed the  penalty  of  five  per  cent,  per  month,  under  the  act  incorporating 
the  company.  In  Diehl  v.  McGlue,  2  Rawle,  337,  the  plaintiff's  decla- 
ration in  assumpsit  contained  counts  for  goods  sold  and  delivered  with 
a  quantum  valebant,  work  and  labor  with  a  quantum  meruit,  money 
had  and  received,  money  paid  and  expended.  On  the  trial  the  plaintiff, 
to  introduce  evidence  inadmissible  under  the  counts  as  they  stood,  of- 
fered an  additional  count,  stating  a  special  agreement  and  promise  by 
the  defendant  to  find  the  plaintiff  constant  employment  at  coach  or 
carriage  trimming  at  a  certain  rate  according  to  the  kind  of  work,  for 
such  length  of  time  as  should  be  mutually  agreed  on,  and  breach 
thereof,  which  the  court  below  received.  This  court,  on  error,  held 
that  it  was  improperly  admitted,  because  it  introduced  a  new  cause  of 
action. 


Ch.  4)  CUEING  DEFECTS  583 

In  actions  ex  delicto,  the  rule  is  the  same.  The  foundation  of  the 
complaint  laid  in  the  declaration  must  be  adhered  to,  although  the 
modes  of  stating  that  complaint  may  be  varied  by  an  amendment. ^^ 
Thus  in  Clymer  v.  Thomas,  7  Serg.  &  R.  178,  in  trespass,  the  declara- 
tion stated  the  act  to  have  been  committed  in  the  township  of  Beaver, 
in  the  county  of  Union.  The  plaintiff  was  allowed  to  amend  the  dec- 
laration after  the  jury  sworn,  by  inserting  the  name  of  Centre  town- 
ship instead  of  Beaver  to  correspond  with  the  fact.  The  substance  of 
the  plaintiff's  case,  says  Tilghman,  C.  J.,  was  a  trespass  committed  by 
the  defendants  by  cutting  timber  on  the  plaintiff's  land  in  Union 
county.  So  in  slander,  where  the  words  in  themselves  are  not  action- 
able, but  are  laid  as  spoken  of  the  plaintiff's  trade  or  calling,  the  trade 
may  be  amended.  Rodrigue  v.  Curcier,  15  Serg.  &  R.  83.  But  in  tro- 
ver for  an  instrument  under  seal,  an  amendment  is  not  allowable  by 
introducing  a  coimt  for  another  and  different  instrument  not  under 
seal,  constituting  a  simple  contract.  Tryon  v.  Miller,  11  Whart.  11. 
To  the  same  effect  is  the  case  of  Keasby  v.  Donaldson,  2  Bro.  103, 
that  in  trover  leave  will  not  be  granted  to  add  other  articles.  And  the 
plaintiff,  having  declared  for  slander,  shall  not  introduce  trover  or 
malicious  prosecution,  or  libel.  Shock  v.  McChesney,  4  Yeates,  507, 
2  Am.  Dec.  415. 

The  effect  of  the  act  of  assembly,  says  Mr.  Justice  Gibson,  is  to 

18  "If  the  plaintiff  has  two  causes  of  action  of  the  same  class,  though  the 
same  facts  may,  in  part  be  common  to  both  of  them,  he  is  not  allowed  to  de- 
clare upon  one  and  afterwards  abandon  it  and  substitute  the  other  by  amend- 
ment. *  *  *  jje  may,  however,  add  further  facts  to  more  fully  describe 
the  cause  of  action,— the  wrong — which  he  originally  alleged.  He  may  allege 
additional  facts  to  show  the  existence  of  his  primary  right,  as  long  as  he  does 
not  undertake  to  set  up  another  and  distinct  right.  And  he  may  allege  addi- 
tional facts  to  show  that  the  defendant  has  been  guilty  of  the  alleged  violation 
of  plaintiff's  right.  If  there  is  substantial  identity  of  wrong  (which  necessari- 
ly includes  identity  of  the  right  violated),  there  is  substantial  identity  of  cause 
of  action.  This  identity  is  not  the  same  as  that  required  between  allegata 
and  probata.  A  party  is  required  to  prove  his  material  and  essential  allega- 
tions as  he  has  alleged  them,  and,  in  the  absence  of  amendment,  may  fail  be- 
cause of  a  variance,  though  the  facts  proved  show  substantially  the  same 
cause  of  action  shown  by  the  facts  alleged.  The  two  sets  of  facts  may  show 
substantially  the  same  cause  of  action,  and  yet  the  proof  of  one  will  not  sus- 
tain the  allegation  of  the  other.  Not  so  with  the  test  of  an  amendment.  To 
avoid  a  variance  is  not  the  least  important  of  the  offices  of  an  amendment. 
Davis  v.  Hill,  41  N.  H.  329  (ISGO).  So  long  as  the  facts  added  by  the  amend- 
ment, however  different  they  may  be  from  those  alleged  in  the  original  peti- 
tion, show  substantially  the  same  wrong  in  respect  to  the  same  transaction, 
the  amendment  is  not  oli.iectionable  as  adding  a  new  and  distinct  cause  of  ac- 
tion."    Simmons,  C.  J.,  in  City  v.  Anglin,  120  Ga.  7S5,  793,  4S  S.  E^  318  (1904), 

"The  great  weight  of  authority  is  to  the  effect  that  the  allowance  of  an 
amendment  to  a  declaration  setting  forth  an  additional  ground  of  negligence 
as  the  cause  of  the  same  injury  does  not  amount  to  the  statement  of  a  new 
cause  of  action."  Johnson,  J.,  in  Chobanian  v.  Washbui-n  Wire  Co.,  33  R.  I. 
289,  304,  80  Atl.  394,  Ann.  Cas.  1913D,  7-30  (1911).  See,  also,  1  Encyc.  PI.  & 
Pr..563,  564;  31  Cyc.  416,  note  40,  Ann.  Cas.  1913D,  742.  For  a  few  cases  con- 
tra, including  cases  from  Illinois  and  Pennsylvania,  see  Ann.  Cas.  1913D,  745. 

Whit.C.L.Pl.— 38 


584  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

authorize  the  courts  to  allow  amendments,  after  swearing  the  jury,  as 
fully  as  they  could  do  at  common  law  before  that  period,  and  also  to 
enable  a  judge  at  nisi  prius  to  grant  amendments,  when  the  cause  is 
about  to  be  tried,  which  formerly  could  only  be  permitted  in  bank. 
Farmers'  &  Mechanics'  Bank  v.  Israel,  6  Serg.  &  R.  294;  Wilson  v. 
Hamilton,  4  Serg.  &  R.  240.  At  common  law  the  rule  was  that,  after 
the  end  of  the  second  term,  the  plaintiff  was  allowed  to  add  a  new 
count,  or  amend  his  declaration,  only  where  the  cause  of  action  was 
substantially  the  same,  but  not  for  a  different  right  of  action.  2 
Tidd's  Prac.  754.  The  reason  of  this  rule  was  that  the  plaintiff  was 
obliged  to  declare  within  two  terms,  and  a  new  right  of  action  was 
considered  as  a  new  declaration.  But  amendments  in  form  or  in  sub- 
stance, not  varying  the  cause  of  action,  could  be  made  at  any  time, 
whilst  the  pleadings  were  in  paper,  and  before  they  were  entered  of 
record.  Id.  Our  act  carries  this  right  of  amendment  down  to  the  very 
period  of  trial  itself ;  and  the  construction  has  uniformly  been  that, 
while  it  never  intended  to  permit  the  plaintiff  to  change  the  cause  of 
action,  yet  any  amendment  short  of  that  was  within  the  letter  and  spirit 
of  the  act,  whether  in  matter  of  form,  or  in  matter  of  substance  af- 
fecting the  merits  of  the  case. 

In  the  present  case  the  action  was  covenant  on  an  agreement  under 
seal,  dated  the  25th  of  July,  1806,  between  Edward  Tilghman  and 
Tench  Coxe,  by  which  the  former  covenanted  to  purchase  certain 
lands  of  the  latter. 

The  original  declaration  contained  four  counts;  and  two  additional 
counts  were  afterwards  filed.  All  these  set  out  in  various  forms  a 
breach  of  one  part  of  the  agreement.  The  defendants  craved  oyer; 
and  the  agreement  being  set  out,  they  put  in  ten  pleas,  to  which  the 
plaintiff  replied  or  demurred.  The  plaintiff's  motion  now  is  for  leave 
to  file  ten  new  counts;  the  defendant's  objections  are  that  the  1st,  2d, 
3rd,  4th,  5th,  and  6th  contain  assignments  of  breaches  similar  to  those 
in  the  former  counts,  except  that  the  1st  count  avers  that  Tench  Coxe 
was  always  ready  to  convey  or  cause  to  be  conveyed — and  that  his  ex- 
ecutors after  his  death  offered  to  cause  the  said  lands  to  be  conveyed 
to  the  executors  or  heirs  of  E.  Tilghman.  The  7th,  8th,  9th  and  10th 
counts  of  the  new  declaration  are  said  to  contain  a  new  cause  of  action, 
because  they  set  out  a  breach  of  another  part  of  the  agreement  not 
alluded  to  at  all  in  the  old  counts,  namely,  of  covenant  by  E.  Tilgh- 
man, that  Dr.  Adam  Kuhn  would  pay  T.  Coxe  25  cents  per  acre,  for 
certain  share  of  the  lands,  and  also  that  the  assignees  of  Joseph 
Thomas  would  pay  the  like  sum  for  another  share. 

It  is  manifest  from  the  principles  already  stated  that  these  amend- 
ments are  allowable.  The  change  in  the  first  count  is  but  another 
mode  of  alleging  performance  by  the  plaintiffs.  The  7th,  8th,  9th  and 
10th  assign  new  breaches,  but  the  plaintiff  adheres  to  .the  same  instru- 
ment on  which  the  former  declaration  was  founded.    No  other  agree- 


Ch.  4)  CUEING   DEFECTS  585 

ment  is  suggested  or  pretended ;  and  it  is  set  out  at  length  by  the  plain- 
tiff on  the  prayer  of  oyer  made  by  the  defendants. 
Leave  granted  to  file  the  ten  new  counts.^® 


ALLEN  V.  TUSCARORA  VALLEY  R.  CO. 

(Supreme  Court  of  Pennsylvania,  1910.     229  Pa.  97,  78  Atl.  34,  30  L.  R.  A. 
[N.  S.]  1096,  140  Am.  St.  Rep.  714.) 

MestrezaT,  J.  This  was  an  action  of  trespass  at  common  law 
brought  July  1,  1904,  by  the  plaintiff,  a  brakeman  in  the  employ  of 
the  defendant  company,  to  recover  damages  for  injuries  received  in 
its  service  while  he  was  in  the  act  of  coupling  cars.  The  statement  was 
filed  with  the  praecipe,  and  averred,  inter  alia,  as  follows :  "It  then 
and  there  was  the  duty  of  defendant  corporation  to  adopt  and  use 
couplings  for  its  cars  of  ordinary  character  and  reasonable  safety,  ac- 
cording to  the  usages,  habits,  and  ordinary  risks  of  the  business,  but 
the  defendant  corporation,  not  regarding  its  duty  in  the  premises,  at 
or  about  February  29,  1904,  at  Juniata  county  aforesaid,  carelessly 
and  negligently  adopted  and  used  the  pin  and  link  coupler,  a  kind  of 
coupler  not  then  in  ordinary  use,  but  more  dangerous  than  the  usual 
and  ordinary  coupling  employed  by  railroads,  by  reason  whereof  plain- 
tiff, while  engaged  in  coupling  cars,  so  as  aforesaid  supplied  and  fitted 
with  the  pin  and  link  coupler  due  to  the  negligence  of  defendant  cor- 
poration, in  the  lawful  performance  of  his  work  and  exercising  due 
and  proper  care,  on  or  about  February  29,  1904,  aforesaid  at  the  coun- 
ty of  Juniata,  was  caught  by  the  left  hand  between  the  two  protruding 
irons,  called  'bull  noses,'  parts  of  the  couplings,  and  therelDy  his  left 
hand  was  badly  cut,  bruised,  lacerated,  and  torn,"  etc. 

In  December,  1908,  a  rule  was  granted  on  the  defendant  to  show 
cause  why  the  statement  should  not  be  amended,  and  on  January  21, 
1909,  the  rule  was  made  absolute  and  the  statement  was  amended  so  as 
to  read,  inter  alia,  as  follows :  "That  said  defendant  corporation  at 
the  time  of  committing  the  grievances  hereinafter  mentioned  was  en- 
gaged in  interstate  commerce  by  railroad  and  a  common  carrier,  and 
did  haul  on  its  line  cars  used  in  moving  interstate  traffic  not  equipped 
with  couplers  coupling  automatically  by  impact,  and  which  can  be  un- 
coupled without  the  necessity  of  men  going  between  the  ends  of  the 
cars,  none  of  its  cars  being  so  equipped  with  couplers  as  aforesaid,  in 
violation  of  Act  Cong.  March  2,  1893,  c.  196,  §  2,  27  Stat.  531  (U.  S. 
Comp.  St.  1901,  p.  3174),  and  its  supplements;  that  the  train  afore- 
said was  not  composed  of  four  wheel  cars  or  eight  wheel  standard 

19  Spencer  v.  Howe,  26  Conn.  200  (1857) ;  Clark  v.  Swift,  3  Mete.  (Mass.) 
390,  .395  (1841);  Heath  v.  Whidden,  24  Me.  383  (1844);  Wilson  v.  Widenham, 
51  Me.  566  (186.3);  Strang  v.  lirnncli,  Circuit  Judge,  lOS  Mich.  229.  65  N.  W. 
969  (1896)  ;  Harris  v.  AVadsworth,  3  Johns.  (N.  Y.)  257  (1808) ;  Boyd  v.  Bartlett, 
30  Vt.  9  (1863).     Accord. 


586  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

logging  cars  where  the  height  of  such  cars  from  top  of  same  to  center 
of  coupHng  does  not  exceed  25  inches  used  exclusively  for  the  trans- 
portation of  logs." 

The  defendant  objected  to  the  allowance  of  the  amendment  on  the 
ground  that  it  introduced  a  new  and  different  cause  of  action  which 
was  barred  by  the  statute  of  limitations.  The  first  assignment  alleges 
error  in  making  the  rule  absolute  and  permitting  the  plaintiff  to  amend 
the  statement  of  claim.  As  we  are  of  opinion  that  this  assignment 
must  be  sustained,  the  other  assignments  become  immaterial  and  need 
not  be  considered  or  determined. 

The  amendment  to  the  statement  of  claim,  allowed  by  the  court, 
brought  the  case  within  the  act  of  Congress  of  March  2,  1893,  and 
alleges  that  the  cars  were  equipped  with  couplers  in  violation  of  the 
act.  This  statute  was  enacted,  as  its  title  declares,  to  promote  the 
safety  of  employes  and  travelers  upon  railroads  engaged  in  interstate 
commerce  by  compelling  common  carriers  to  equip  their  cars  with  au- 
tomatic couplers,  etc.,  and  makes  it  unlawful  for  a  common  carrier  to 
haul  or  permit  to  be  hauled  any  car  used  in  moving  interstate  traffic 
not  equipped  with  couplers  coupling  automatically  by  impact.  Sec- 
tion 8  of  the  act  provides :  "That  any  employe  of  any  such  common 
carrier  who  may  be  injured  by  any  locomotive,  car,  or  train  in  use 
contrary  to  the  provisions  of  this  act  shall  not  be  deemed  thereby  to 
have  assumed  the  risk  thereby  occasioned,  although  continuing  in  the 
employment  of  such  carrier  after  the  unlawful  use  of  such  locomotive, 
car,  or  train  had  been  brought  to  his  knowledge." 

The  original  statement,  as  observed,  was  at  common  law,  and  alleges 
that  the  plaintiff's  injuries  resulted  from  the  defendant  company  hav- 
ing carelessly  and  negligently  adopted  and  used  the  pin  and  link 
coupler,  more  dangerous  than  the  usual  and  ordinary 'coupling  employ- 
ed by  railroads.  Prior  to  the  act  of  Congress,  employes  of  common 
carriers  assumed  the  risks  and  dangers  naturally  and  ordinarily  incident 
to  their  employment  which  included  the  risks  and  hazards  arising 
from  the  performance  of  their  duty  in  coupling  cars.  If  the  employe 
was  injured  in  the  discharge  of  that  duty,  and  it  was  a  risk  which  he 
assumed,  the  carrier  was  not  responsible.  But  the  act  changes  the 
liability  of  the  carrier  when  engaged  in  interstate  commerce,  and' what 
was  lawful  at  common  law  before  the  passage  of  the  act  is  made  un- 
lawful by  the  act.  The  statute  abrogates  the  common  law  pro  tanto, 
and  imposes  a  liability  on  the  carrier  different  from  that  imposed  by 
the  common  law.  The  latter  gives  the  employe  a  right  of  action  for 
an  injury  resulting  from  a  negligent  act  exposing  him  to  a  danger 
which  he  did  not  assume  in  entering  the  carrier's  service;  but  the 
statute  deprives  the  carrier  of  the  protection  and  defense  of  the  risk 
assumed  by  the  employe,  which  it  had  at  common  law.  The  act  of  the 
carrier  in  failing  to  equip  its  cars  with  automatic  couplers  is  declared  to 
be  unlawful,  and  is  forbidden  under  the  penalty,  imposed  by  section 


Ch.  4)  CURING    DEFECTS  587 

8,  that  the  employe  if  injured  shall  not  be  deemed  to  have  assumed 
the  risk  of  his  employment.  The  act  of  Congress  is  the  basis  of  the 
plaintiff's  claim,  as  laid  in  the  amended  statement ;  while,  in  the  orig- 
inal statement,  the  basis  of  the  claim  is  the  failure  of  the  carrier  to 
perform  its  common-law  duty  to  him  as  its  employe.  The  amendment 
is  not  a  restatement  or  the  statement,  in  a  different  form,  of  the  same 
cause  of  action,  but  the  averment  of  a  statutory  cause  of  action  in 
which  the  liability  is  different  and  greater  than  in  an  action  at  common 
law.  It  deprives  the  defendant  of  a  valuable  right,  viz.,  the  defense 
of  the  assumption  of  risk  by  the  plaintiff,  which  is  not  permissible. 
Kaul  V.  Lawrence,  7Z  Pa.  410.  We  think  it  clear  that  the  amendment 
to  the  statement  of  claim  introduced  a  new  and  different  cause  of  ac- 
tion, which  was  barred  by  the  statute  of  limitations,  and  therefore, 
under  the  well-settled  rule  in  this  state,  it  should  not  have  been  allowed. 
In  support  of  the  contention  that  the  amendment  did  not  change 
the  cause  of  action,  the  learned  counsel  for  the  plaintiff'  claims  that  the 
language  of  the  original  staternent  was  not  changed  in  any  way  by 
the  amendnient  which,  it  is  alleged,  consisted  simply  of  an  addition  to 
the  original  statement  and  directed  attention  to  the  act  of  Congress 
and  its  supplement  as  being  applicable  to  the  facts  of  the  case.  But, 
it  will  be  observed,  in  the  amendment  there  was  a  departure,  not  only 
from  the  facts  as  laid  in  the  original  statement,  but  also  from  the  law 
as  applicable  to  the  facts  in  the  original  statement.  In  other  words, 
there  was  a  departure,  not  only  from  fact  to  fact,  but  from  law  to 
law.  A  departure  in  pleading  may  be  either  in  the  substance  of  the 
action  or  defense,  or  the  law  on  which  it  is  founded.  2  Saunders  on 
Pleading  and  Evidence,  *807.  The  original  statement,  it  is  true,  aver- 
red the  injuries  of  the  plaintiff  and  the  alleged  negligent  act  of  the  de- 
fendant by  which  they  were  caused,  but  there  was  no  intimation  in  the 
statement  that  the  carrier  was  engaged  in  interstate  commerce  or  that 
the  defendant's  cars  were  equipped  with  couplers  in  violation  of  the  act 
of  Congress.  Proof  of  the  existence  of  these  two  additional  facts  was 
required  to  sustain  the  action  as  amended,  and  this  is  one  of  the  tests 
in  determining  whether  the  amendment  introduces  a  different  cause  of 
action.    Wabash  R.  Co.  v.  Bhymer,  214  111.  579,  7Z  N.  E.  879.-<^     It 

2  0  "After  a  petition  lias  been  filed,  the  plaintiff  has  no  right  to  amend  it  so 
as  to  add  a  new  and  distinct  cause  of  action.  The  application  of  this  rule 
has  brought  confusion  into  the  decisions  of  this  court  as  to  the  allowance 
of  amendments,  and  has  also  given  trouble  in  other  jurisdictions  in  A^hich 
the  same  rule  prevails.  A  number  of  tests  have  been  suggested  for  determin- 
ing whether  an  amendment  adds  a  new  cause  of  action.  One  general  test  is 
said  to  be  "whether  the  proposed  amendment  is  a  different  nuitter,  another 
subject  of  controversy,  or  the  same  matter  more  fully  or  differently  laid  to 
meet  the  possible  scope  and  varying  i)hases  of  the  testimony.'  1  En?.  I'l.  & 
Pr.  564.  Otlier  tests,  some  of  them  admittedly  fallible,  have  been  suggested 
in  different  cases,  as:  (1)  Whether  the  original  petition  and  the  amendment 
would  he  subject  to  the  same  plea  (Goddard  v.  Perkins,  9  N.  II.  4SS  [18.'58]) ; 
(2)  whether  the  same  evidence  would  support  both  (ycovill  v.  Glasner,  79  >Io. 
449  [1SS3]) ;    (3)  whether  the  same  measure  of  damages  is  applicable  to  both 


588  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

is  apparent  that  without  this  amendment  the  act  of  Congress  could 
have  had  no  place  in  the  case,  and  could  not  have  been  invoked  to  de- 
prive the  company  of  its  defense  that  the  plaintiff  assumed  the  risks 
or  dangers  of  his  employment.  If,  however,  all  the  facts  necessary  to 
bring  the  case  within  the  act  of  Congress  had  been  included  in  the  orig- 
inal statement,  it  would  have  been  insufficient  as  a  statement  under 
the  act  without  a  reference  to  the  statute.  Bolton  v.  Georgia  Pacific 
Ry.  Co.,  83  Ga.  659,  10  S.  E.  352.  It  is  also  true  that  if,  as  claimed 
by  the  plaintiff,  all  the  facts  necessary  to  sustain  a  recovery  on  the 
amended  statement  were  set  forth  in  the  original  statement,  the  amend- 
ment would  still  be  a  change  or  departure  from  the  original  statement, 
not  from  fact  to  fact,  but  from  law  to  law,  from  an  action  founded  on 
the  common  law  to  one  founded  on  a  statute  abrogating  the  common 
law,  which  is  equally  effective  to  prevent  an  allowance  of  the  amend- 
ment. In  such  case  the  plaintiff  bases  his  right  of  recovery  upon  other 
and  different  law,  instead  of  other  and  different  facts,  and  it  constitutes 
a  departure  from  the  original  cause  of  action.  Union  Pacific  Ry.  Co. 
V.  Wyler,  158  U.  S.  285,  15  Sup.  Ct.  877,  39  L.  Ed.  983;  Boston  & 
Maine  R.  R.  Co.  v.  Hurd,  108  Fed.  116,  47  C.  C.  A.  615,  56  L.  R. 
A.  193. 

Our  conclusion  is  supported  by  numerous  decisions  in  this  and 
other  jurisdictions  in  which  the  same  doctrine  has  been  announced  and 
applied.  Dunbar  Furnace  Co.  v.  Fairchild,  121  Pa.  563,  571,  15  Atl. 
656,  657,  was  a  common-law  action,  of  trespass  to  recover  damages  for 
cutting  and  carrying  away  timber  standing  on  the  plaintiff's  land.  Aft- 
er the  statute  of  limitations  had  run,  the  court  allowed  the  plaintiff  to 
amend  his  statement  so  as  to  permit  him  to  recover  treble  damages 
under  the  act  of  March  29,  1824,  for  cutting  and  converting  timber 
trees.  This  court  reversed  the  common  pleas,  and  held  that  the 
amendment  introduced  a  new  cause  of  action,  and  should  not  have 
been  allowed.  In  the  opinion  it  is  said:  "It  has  been  many  times  de- 
cided that,  in  order  to-  recover  under  that  act  (of  1824),  it  is  neces- 
sary to  declare  specially  upon  its  terms,  and  that  a  common-law  action 
of  trespass  will  not  suffice.  *  *  *  f  he  difficulty  with  the  present 
case  is  that  there  is  not  only  no  conclusion  contrary  to  the  form  of  the 
statute,  etc.,  but  there  is  no  allegation  of  any  other  kind  that  the  action 
is  brought  under  the  statute."  The  case  was  again  in  this  cOurt  (Fair- 
child  V.  Dunbar  Furnace  Co.,  128  Pa.  485,  498,  18  Atl.  443,  444),  and 
again  it  was  held  that  the  amendment  could  not  be  allowed.  In  de- 
livering the  opinion,  Mr.  Justice  Clark  said:   "This  action  of  trespass, 

(Hurst  V.  Railway,  84  IMich.  5.'^9,  4S  N.  W.  44  [1801]);  (4)  whether  both  could 
have  been  pleaded  cumulatively  in  the  .same  count  (Richardson  v.  Feuner,  10 
La.  Ann.  000  [18551) ;  (5)  whether  an  adjudication  u])on  one  would  bar  a  suit 
under  the  other  (Davis  v.  Railroad  Co.,  110  N.  Y.  646,  17  N.  E.  73.3  [1888]). 
Of  these  the  last  mentioned  is  probably  the  best  and  most  useful,  though  even 
it  comes  back  at  last  to  the  question  whether  the  cause  of  action  is  the  same." 
Simmons,  C.  J.,  in  City  v.  Angliu,  120  Ga.  785,  792,  48  S.  E.  318  (1904). 


Ch.  4)  CUEING   DEFECTS  589 

being  brought  at  the  common  law,  was  brought  to  redress  the  injury 
done,  by  an  award  of  compensation  ;  but  the  action  under  the  statute 
is  not  for  a  redress  of  the  injury.  It  is  to  recover  a  penalty  prescribed 
by  the  statute,  which,  as  a  police  regulation,  is  intended  for  the  protec- 
tion of  real  property  from  waste  by  those  who  either  negligently  or 
willfully  intrude  upon  the  lands  of  others.  The  cause  of  action  ac- 
cruing under  this  statute,  although  arising  on  the  same  matter,  is  dif- 
ferent from  that  accruing  at  common  law,  and  whilst,  perhaps,  they 
may  be  joined  in  one  action,  there  can  be  but  one  recovery.  An  amend- 
ment to  a  declaration  will  not  be  allowed  if  a  new  cause  of  action  is 
thereby  introduced." 

In  Bolton  v.  Railway  Co.,  83  Ga.  659,  660,  10  S.  E.  352,  353,  an 
action  by  an  employe  against  the  defendant  company,  it  was  said,  in 
refusing  an  amendment  to  the  statement:  "If,  however,  he  commences 
his  action  and  relies  upon  his  common-law  right,  we  do  not  think  he 
can  amend  his  common-law  declaration  by  setting  out  the  statute  and 
relying  upon  that  for  his  right  to  sue  and  for  his  recovery.  In  this 
case  the  original  declaration  was  founded  upon  the  common-law  right. 
Nothing  was  even  intimated  therein  to  the  effect  that  he  relied  upon 
the  statute.  According  to  the  decision  in  Exposition  Cotton  Mills  v. 
Western  &  Atlantic  R.  R.  Co.,  83  Ga.  441  [10  S.  E.  113],  and  cases 
cited  therein,  made  at  this  term,  this  amendment  would  have  added 
a  new  and  distinct  cause  of  action."  This  case  also  meets  the  argu- 
ment of  the  plaintiff's  counsel  in  the  present  case  that  the  language  of 
the  original  statement  was  not 'changed  by  the  amendment.  The  court 
says  (page  661  of  83  Ga.,  page  353  of  10  S.  E.) :  "But  it  is  argued 
by  counsel  for  plaintiff  in  error  that  all  of  the  facts  required  by  the 
Alabama  statute  to  be  pleaded  were  already  pleaded  in  the  declaration, 
and  that  simply  to  mention  the  statute  in  the  amendment  and  recite 
the  same  facts  therein  would  not  be  a  new  cause  of  action.  While  it 
may  be  true  that  all  the  facts  required  by  the  Alabama  statute  had 
been  set  out  in  the  declaration,  still  those  facts  alleged  in  the  common- 
law  declaration  were  mere  surplusage  and  had  no  legal  vitality,  and 
would  have  been  so  regarded  by  the  court  trying  the  case.  It  required 
the  pleading  of  the  statute  to  give  them  any  vitality  at  all.  As  we 
have  seen,  that  statute  is  not  mentioned  or  intimated  in  the  original 
declaration,  and  hence  to  have  allowed  the  amendment  offered  would 
have  been  allowing  the  introduction  of  a  new  cause  of  action." 

Union  Pacific  Ry.  Co.  v.  Wyler,  158  U.  S.  285,  295,  15  Sup.  Ct.  877, 
881,  39  Iv.  Ed.  983,  was  an  action  by  an  employe  against  a  railroad  com- 
pany based  upon  the  common  law  of  master-  and  servant,  and  was 
brought  to  recover  damages  for  an  injury  which  had  happened  to  the 
plaintiff'  in  Kansas  while  on  duty  there.  It  was  held  that  an  amend- 
ed petition  which  changes  the  nature  of  the  claim  and  bases  it  upon  a 
statute  of  Kansas  giving  the  employe  in  such  a  case  a  right  of  action 
against  the  company  in  derogation  of  the  common  law  is  a  departure  in 


590  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

pleading,  and  sets  up  a  new  cause  of  action.  The  trial  court  allowed 
the  amendment,  and  in  reversing  the  judgment  Mr.  Justice  White,  in 
an  exhaustive  opinion,  discusses  the  right  to  amend  an  original  state- 
ment in  such  cases.  He  says,  inter  alia :  "A  suit  based  upon  a  cause 
of  action  alleged  to  result  from  the  general  law  of  master  and  servant 
was  not  a  suit  to  enforce  an  exceptional  right  given  by  the  law  of 
Kansas.  If  the  charge  of  incompetency  in  the  first  petition  was  not 
per  se  a  charge  of  negligence  on  the  part  of  the  fellow  servant,  then 
the  averment  of  negligence  apart  from  incompetency  was  a  departure 
from  fact  to  fact,  and  therefore  a  new  cause  of  action.  Be  this  as  it 
may,  as  the  first  petition  proceeded  under  the  general  law  of  master 
and  servant,  and  the  second  petition  asserted  a  right  to  recover  in 
derogation  of  that  law,  in  consequence  of  the  Kansas  statute,  it  was 
a  departure  from  law  to  law.  *  *  *  It  is  argued,  however,  that 
as  all  the  facts  necessary  to  recovery  were  averred  in  the  original  peti- 
tion, the  subsequent  amendment  set  out  no  new  cause  of  action  in  al- 
leging the  Kansas  statute.  If  the  argument  were  sound,  it  would  only 
tend  to  support  the  proposition  that  there  was  no  departure  or  new 
cause  of  action  from  fact  to  fact,  and  would  not  in  the  least  meet  the 
difficulty  caused  by  the  departure  from  law  to  law.  Even  though  it 
be  conceded  that  all  the  facts  necessary  to  give  a  right  to  recovery  were 
contained  in  the  original  petition,  as  this  predicated  the  assertion  of 
that  right  on  the  general  law  of  master  and  servant,  and  not  upon  the 
exceptional  rule  established  by  the  Kansas  statute,  it  was  a  departure 
from  law  to  law.  The  most  common,  if  not  the  invariable,  test  of 
departure  in  law,  as  settled  by  the  authorities  referred  to,  is  a  change 
from  the  assertion  of  a  cause  of  action  under  the  common  or  general 
law  to  a  reliance  upon  a  statute  giving  a  particular  or  exceptional 
right." 

We  are  all  of  opinion  that  the  amendment  allowed  by  the  court  be- 
low introduced  a  new  cause  of  action,  barred  by  the  statute  of  limita- 
tions.   The  first  assignment  of  error  must,  therefore,  be  sustained. 

The  judgment  is  reversed  with  a  venire  facias  de  novo.^^ 

21  In  the  following  cases  an  amendment  departing  from  law  to  law  was  held 
to  set  up  a  new  cause  of  action:  Bradley  v.  Chicago,  etc.,  Co.,  231  111;  622, 
83  N.  E.  424  (1908:  from  claim  by  administrator  based  on  common  law  to- 
claim  by  parents  based  on  statute,  then  hack  to  claim  by  administrator  based 
on  common  law) ;  Chicago,  etc.,  Co.  v.  Jones,  149  111.  301,  37  N.  E.  247,  24  L. 
R.  A.  141,  41  Am.  St.  Rep.  278  (1894 :  from  statutory  claim  for  treble  damages 
to  common  law) ;  Henderson  v.  Moweaqua,  etc.,  Co.,  145  111.  App.  637  (1908 : 
from  claim  for  common  law  negligence  to  liability  under  Mines  Act) ;  Ander- 
son V.  Wetter,  103  Me.  257,  69  Atl.  105,  15  L.  R.  A.  (N.  S.)  1003  (1907 :  from 
claim  for  conscious  suffering  of  decedent  to  action  for  wrongful  death) ;  Church 
V.  Bolyston,  etc.,  Co.,  218  Mass.  231,  105  N.  E.  883  (1914 :  similar  to  Anderson 
V.  Wetter,  supra) ;  Fouruier  v.  Detroit  United  Railway,  157  JMich.  589,  122  N. 
W.  299  (1909:  similar  to  Anderson  v.  Wetter,  supra);  Wingert  v.  Circuit 
Judge,  101  ]\Iich.  395,  59  N.  W.  662  (1894 :  from  Michigan  statute  to  Canadian 
statute);  Melvin  v.  Smith,  32  N.  H.  462  (1841:  from  claim  for  statutory  pen- 
alty to  common-law  trespass) ;  Boston,  etc.,  Co.  v.  Hurd,  108  Fed.  116,  47  C. 
C.  A.  615,  56  L.  R.  A.  193  (1901:   similar  to  Anderson  v.  Wetter,  supra) ;   Des- 


Ch.  4)  CUEING   DEFECTS  591 

KNIGHT  V.  TRIM. 
(Supreme  Judicial  Court  of  Maine,  1897.     89  Me.  4G9,  36  Atl.  912.) 

On  exceptions  by  plaintiff. 

This  was  an  action  on  an  award,  the  agreement  to  submit  to  arbitra- 
tion being  under  seal,  and  the  award  of  the  arbitrators  thereon  being 
in  writing. 

The  action  was  "of  the  case,"  in  assumpsit. 

The  plea  of  defendant  was  the  general  issue. 

The  plaintiff  moved  to  amend  the  writ  from  assumpsit  to  debt. 

The  presiding  justice  refused  the  amendment,  and  ordered  a  non- 
suit.    The  plaintiff  excepted. 

Haski;ll,  J.  Assumpsit  upon  an  award  on  submission  under  seal 
cannot  be  maintained.  Holmes  v.  Smith,  49  Me.  242.  Nor  can  the 
form  of  action  be  changed  by  amendment  from  assumpsit  to  debt. 
Flanders  v.  Cobb,  88  Me.  488,  34  Atl.  277,  51  Am.  St.  Rep.  410. 

Exceptions  overruled.-^ 

peaux  V.  Pennsylvania,  etc.,  Co.  (C.  C.)  133  Fed.  1009  (1904:  from  statutory 
claim  for  discriminatory  charges  to  common-law  claim  for  overcharge)  ;  Hall 
V.  Louisville,  etc.,  Co.  (C.  C.)  157  Fed.  464  (1907 :  from  claim  by  widow  under 
Florida  statute  to  claim  by  representative  under  federal  Employers'  Liability 
Act). 

The  Supreme  Court  of  Alabama  has  distinctly  repudiated  departure  from 
law  to  law  as  a  test  of  the  statement  of  a  new  cause  of  action.  Alabama,  etc., 
Co.  V.  Ileald,  l.'i4  Ala.  580,  45  South.  686  (1908).  The  force  of  Union,  etc.,  Co. 
v.  Wyler,  158  IT.  S.  285,  15  Sup.  Ct.  877,  39  L.  Ed.  983  (1895),  which  is  relied 
upon  in  the  principal  case  and  in  the  federal  cases  above  cited,  is  greatly 
weakened  by  Missouri,  etc.,  Ry.  v.  Wulf,  226  U.  S.  570,  33  Sup.  Ct.  135,  57 
L.  Ed.  355,  Ann.  Cas.  1914B,  134  (1913).  See,  also,  Seaboard  Air  Line  Ry.  v. 
Koennecke,  239  U.  S.  352,  .36  Sup.  Ct.  126.  60  L.  Ed.  324  (1915).  In  Code  states^ 
there  is  some  conflict  upon  this  point.  See  notes  30  L.  R.  A.  (N.  S.)  1096,  3 
L.  R.  A.  (N.  S.)  287. 

22  Mobile,  etc.,  Co.  v.  MeKellar,  .59  Ala.  458  (1877:  trespass  to  case);  Har- 
ris V.  Hillman.  26  Ala.  380  (1855:  detinue  to  trover) ;  Flanders  v.  Cobb,  88  Me. 
488,  34  Atl.  277,  51  Am.  St.  Rep.  410  (1896 :  assumpsit  to  case) ;  People  v.  Cir- 
cuit Judge,  13  Mich.  206  (1865 :  trover  to  assumpsit) ;  Canienter  v.  Gookin, 
2  Vt.  495,  21  Am.  Dec.  566  (1829 :  assumpsit  to  trover) ;  Ten  Broeck  v.  Pendle- 
ton, Fed.  Cas.  No.  13,827  (1838  :    case  to  debt).     Accord. 

By  a  more  liberal  interpretation  of  statutes  of  amendment,  or  by  reason  of 
express  statutory  authorization  of  change  of  form  of  action  by  amendment, 
the  opposite  result  was  reached  in  the  following  cases :  Nortli  v.  Nichols,  39- 
Conn.  355  (1872 :  assumpsit  to  covenant  and  debt) ;  Garrity  v.  Hamburger  Co., 
136  HI.  499,  27  N.  E.  11  (1891:  assumpsit  to  account) ;  May  v.  Disconto  Gesell- 
schaft,  211  111.  310,  71  N.  E.  1001  (1904 :  trover  to  assumpsit) ;  De  Bebian  v. 
Gola,  64  Md.  262,  21  Atl.  275  (1885 :  assumpsit  to  debt  or  covenant),  semble ; 
Baltimore,  etc.,  Co.  v.  McGowan,  16  Md.  47  (1860:  covenant  to  assumpsit); 
Kirwan  v.  Raborg,  1  Har.  &  J.  (Md.)  296  (1802 :  assumpsit  to  trover) ;  Steb- 
bins  V.  Lancashire,  etc..  Co.,  59  N.  H.  143  (1879 :  .assumpsit  to  Covenant,  over- 
ruling former  cases) ;  Morse  v.  Glover,  68  N.  H.  119,  40  Atl.  .396  (1894 :  case  to 
trespass") ;  Fellows  v.  Judge,  72  N.  H.  466,  57  Atl.  653  (1904:  case  for  deceit  to 
assumpsit) ;  U.  S.  Watch  Co.  v.  Learned,  36  N.  J.  Law,  429  (1872 :  covenant 
to  assumpsit) ;  Price  v.  New  Jersey,  etc.,  Co.,  31  N.  J.  Law,  229  (1865 :  trespass- 
to  case) ;  Carrier  v.  Dellay,  3  How.  Prac.  (N.  Y.)  173  (1847  :  trespass  to  trover) ; 
Smith  V.  Bellows,  77  Pa.  441  (1875 :  case  to  assumpsit ;  but  see  McNair  v.. 
Compton,  35  Pa.  23  (1859),  decided  prior  to  statute  of  1871 ;   Tyson  v.  Belmont, 


592  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

AYER  V.  GLEASON. 

(Supreme  Judicial  Court  of  Maine,  1S72.     60  Me.  207.) 

On  report.    Trover. 

The  writ,  in  the  usual  form,  commanded  the  officer  to  summon  the 

defendant  to  appear  and  "answer  unto  James  C.  Ayer  and ,  of," 

etc.,  "copartners  in  trade  and  doing  business  under  the  style  and  firm 
name  of  James  C.  Ayer  &  Co.,"  etc. 

At  the  March  term,  1872,  the  plaintiff  asked  leave  to  insert  the 
names  of  F.  K.  Ayer,  A.  G.  Cook,  and  H.  Ely,  the  other  members  of 
the  firm,  which  was  granted  upon  terms. 

If  this  amendment  was  allowable,  the  case  to  stand  for  trial,  other- 
wise plaintifif  be  nonsuit. 

ApplKTon,  C.  J.  The  defendant  was  summoned  to  answer  to  the 
suit  of  "James  C.  Ayer  and ,  of  Lowell,  in  the  county  of  Mid- 
dlesex and  state  of  Massachusetts,  copartners  in  trade  and  doing 
business  under  the  style  and  firm  name  of  James  C.  Ayer  &  Co.,  said 
company  being  established  agreeably  to  law,  and  now  is  a  legal  com- 
pany." The  names  of  the  partners  of  Ayer  were  not  inserted  in  the 
writ.  The  court,  on  the  plaintiff's  motion,  permitted  the  writ  to  be 
amended  by  inserting  the  names  of  the  several  individuals  constituting, 
with  said  Ayer,  the  firm  of  Ayer  &  Co.  To  this  the  defendant  ex- 
cepted. 

Exceptions  do  not  lie  to  the  granting  or  refusing  of  amendments 
legally  allowable,  but  when  an  amendment  not  authorized  by  law  is 
permitted,  the  party  aggrieved  may  except  therefor.  Newell  v.  Hussey, 
18  Me.  249,  36  Am.  Dec.  717. 

By  the  common,  law,  amendments  by  striking  out  the  names  of  exist- 
ing plaintiffs  or  defendants,  or  by  inserting  those  of  new  and  addi- 
tional ones,  were  not  allowable  in  actions  of  assumpsit  or  on  con- 
tracts. 

In  a  writ  of  entry,  an  amendment  by  striking  out  the  name  of  one 
of  the  demandants  was  not  allowed  in  Treat  v.  McMahon,  2  Greenl. 
120.  In  assumpsit  against  two  or  more,  the  plaintiff  was  not  per- 
mitted to  amend  by  striking  out  the  name  of  one  of  the  defendants. 
Redington  v.  Farrar,  5  Greenl.  (5  Me.)  379.  In  actions  on  contract  at 
common  law,  the  names  of  new  plaintiffs  or  defendants  cannot  be  added 
by  way  of  amendment.-^     Winslow  v.  Merrill,   11  Me.   127.     In  an 

Fed.  Cas.  No.  14,315a  (1S49 :  debt  to  covenant) ;  Billing  v.  Flight,  6  Taunt. 
419  (1816 :    assumpsit  to  debt). 

23  "It  seems  also  to  be  well  settled  that  in  actions  on  contract  new  plaintiffs 
or  new  defendants  can  never  be  added  by  way  of  amendment,  unless  by  the 
express  consent  of  parties,  though  in  other  actions  for  torts  a  defendant  may 
be  struck  out.  Redington  v.  Farrar  &  al.,  o  Greenl.  379  [1S28].  We  have  no 
doubt  the  ruling  of  the  judge  was  correct  in  refusing  leave  to  amend,  by  in- 
serting the  name  of  Andrew  Scott  as  a  codefendant.  *  *  *  »  Mellen,  C.  J., 
in  Winslow  v.  Merrill,  11  Me.  127  (1834). 


Ch.  4)  CURING   DEFECTS  593 

action  by  husband  and  wife  to  recover  back  usurious  interest,  the 
plaintiff  was  not  permitted  to  amend  by  striking  out  the  name  of  the 
wife.     Roach  v.  Randall,  45  Me.  438. 

The  common  law,  so  far  as  it  relates  to  defendants,  was  changed  by 
statute  in  1835  (Laws  1835-36,  c.  178,  §  4)  by  inserting  or  striking  out 
the  names  of  the  defendants.  R.  S.  1871,  c.  82,  §  11.  But  this  provi- 
sion has  never  been  held  to  authorize  any  amendment  of  a  similar 
character  as  to  plaintiffs.  White  v.  Curtis,  35  Me.  534.  This  court 
cannot  legislate,  however  desirable  any  particular  legislation  may  be 
in  their  judgment,  upon  the  subject-matter  of  amendments. 

In  petitions  for  partition  the  petition  may  be  amended,  in  certain 
cases,  by  striking  out  the  names  of  the  petitioners  and  inserting  those 
of  others.    R.  S.  1871,  c.  88,  §  11. 

As  the  amendment  in  question  was  not  allowable  at  the  common 
law,  and  as  the  legislature  have  changed  the  law  of  amendments  only 
as  to  defendants,  the  common  law  must  be  regarded  as  in  force  so 
far  as  it  relates  to  plaintiffs,  and  consequently  the  amendment  is  not 
allowable. 

Amendments,  like  the  one  granted  in  the  present  case,  have  been 
allowed  in  some  of  the  states,  but  their  allowance  is  placed  upon  special 
statutory  provisions,  by  which  they  are  authorized.  Stuart  v.  Corning, 
32  Conn.  105;  Pitkin  v.  Roby,.43  N.  H.  138.  In  the  latter  case  the 
court  expressly  say  that  "at  common  law,  such  amendments  could  not 
be  made  in  actions  of  assumpsit." 

Exceptions  sustained.-* 

Kent,  Walton,  Dickerson,  and  Barrows,  JJ.,  concurred. 


BUCKLAND  v.  GREEN. 

(Supreme   Judicial    Court    of   Massachusetts,    1882.     13.3    Mass.    421.) 

Contract  by  "Georgie  A.  Buckland,  administratrix  of  the  estate  of 
J.  P.  Buckland,  late  of  Holyoke,  in  said  county,  deceased,"  on  an  ac- 
count annexed,  for  services  alleged  to  have  been  rendered  by  the 
plaintiff's  intestate.  The  writ  was  dated  March  30,  1881,  and  al- 
leged that  "this  action  is  brought  for  the  benefit  of  William  G.  White, 
of  Chicopee,  in  said  county,  the  equitable  owner  of  said  claim."  The 
answer  denied  each  and  every  material  allegation  in  the  plaintiff's 
declaration,  alleged  payment,  and  contained  the  following:  "And  the 
defendant  for  further  answer  says  that,  prior  to  the  commencement  of 
this  action,  the  plaintiff,  as  administratrix  of  said  estate,  under  license 
granted  by  the  probate  court  in  and  for  the  county  of  Hampden,  duly 

24  The  oouimon-law  rules  as  to  adding  or  strikinj:  out  parties  plaintiff  or 
defendant  have  heen  very  generally  changed  by  statute.  See  1  Euoy.  PI.  & 
Pr.  535  et  seq  \  3  Eucy.  L.  &  P.  654  et  seq. ;   31  Cyc.  469  et  seq. 


594  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3^ 

sold  or  assigned  the  demand  or  claim  against  the  defendant  on  which 
this  suit  is  founded." 

In  the  Superior  Court  the  plaintiff  offered  the  following  amend- 
ment :  "And  now  comes  the  plaintiff',  and  moves  to  amend  the  writ 
in  said  action  by  striking  out  the  words :  'Georgie  A.  Buckland,  ad- 
ministratrix of  the  estate  of  J.  P.  Buckland,  late  of  Holyoke,  in  said 
county,  deceased.  This  action  is  brought  for  the  benefit  of  William 
G.  White,  of  Chicopee,  the  equitable  owner  of  said  claim' — and  in- 
serting the  following :  'William  G.  White,  of  Qiicopee,  in  said  county, 
the  claim  for  which  this  action  is  brought  having  been  sold  and  as- 
signed by  Georgie  A.  Buckland,  administratrix  of  the  estate  of  J. 
P.  Buckland,  by  authority  and  license  of  the  Probate  Court,  on  the  19th 
day  of  March,  1881,  and  purchased  by  said  William  G.  White.'  " 

Putnam,  J.,  allowed  this  amendment,  against  the  objection  of  the 
defendant. 

It  was  agreed  that  said  claim  was  duly  sold,  as  alleged,  prior  to  the 
commencement  of  this  action;  and  that  all  the  formalities  required 
by  the  Gen.  St.  1860,  c.  98,  §  4,  had  been  complied  with.  At  the  hear- 
ing without  a  jury,  the  judge  found  for  the  plaintiff;  and  the  defend- 
ant alleged  exceptions. 

By  the  Court.  The  allowance  of  the  amendment  was  within  the 
discretion  of  the  Superior  Court.     Winch  v.  Hosmer,  122  Mass.  438. 

Exceptions  overruled.'^ 


LEWIS  LUMBER  CO.  v.  CAMODY. 

(Supreme  Court  of  Alabama,  1902.     137  Ala.  578,  35  South.  126.) 

Tyson,  J.^^  Although  there  are  a  number  of  errors  assigned,  but 
two  of  them  are  insisted  upon  in  brief  of  counsel. 

The  first  of  these  is  predicated  upon  the  action  of  the  court  in  over- 
ruling the  defendant's  motion  to  strike  the  amendment  of  the  com- 
plaint, which  had  been  allowed.  This  amendment  consists  in  striking 
out  of  the  caption  of  the  complaint  the  words  "a  firm  composed  of  B. 
A.  Lewis  et  al.  and  B.  A,  Lewis  individually,"  and  inserting  in  lieu 
thereof  the  words,  "a.  corporation  organized  under  the  laws  of  the 
state  of  Maine,"  making  the  caption  as  amended  read  "M.  C.  Camody 
vs.  The  Lewis  Lumber  Company,  a  corporation,"  etc.  The  ground  of 
the  motion  insisted  upon  is  that  the  amendment  substitutes  a  new  par- 
ty defendant.  The  party  sued  is  the  "Lewis  Lumber  Company,"  and 
the  words  stricken  out  and  those  added  are  merely  descriptive.  The 
amendment  was  permissible.    Western  Railway  of  Ala.  v.  Sistrunk,  85 

25  That  under  modern  statutes  and  practice,  the  party  beneficially  interested 
may  be  substituted  for  the  nominal  plaintiff,  and  vice  versa,  see  1  Ency.  PL 
&  Pr.  537 ;    3  Ency.  L.  &  P.  655. 

26  The  statement  of  facts  and  a  portion  of  the  opinion  are  omitted. 


1 


Ch.  4)  CURING   DEFECTS  595 

Ala.  352,  5  South.  79;  Southern  Life  Ins.  Co.  v.  Roberts,  60  Ala.  431 ; 
Ex  parte  Nicrosi,  103  Ala.  104,  15  South.  507. 

If  the  contract  sued  on  was  not  executed  by  the  defendant,  but  was 
the  contract  of  some  other  person  or  firm  doing  business  under  the 
name  of  the  "Lewis  Lumber  Company,"  that  was  a  matter  of  de- 
fense.    *     *     *     Affirmed. ^^ 


WALKER  V.  LANSING  &  SUBURBAN  TRACTION  CO. 

(Supreme  Court  of  Michigau,  1906,     144  Mich.  6So,  108  N.  W.  90.) 

Case  by  Charles  H.  Walker,  administrator  of  the  estate  of  Minnie 
M.  Walker,  deceased,  against  the  Lansing  &  Suburban  Traction  Com- 
pany for  the  negligent  killing  of  plaintiff's  intestate.  There  was  judg- 
ment for  plaintiff,  and  defendant  brings  error.     Reversed. 

Moore,  J.  Mrs.  Walker,  the  wife  of  plaintiff,  was  in  February, 
1905,  a  passenger  on  a  car  belonging  to  defendant  company.  It  is 
plaintiff's  claim  that  after  descending  from  the  car  Mrs.  Walker  at- 
tempted to  pass  behind  the  car  to  reach  the  opposite  side  of  the  street, 
that  without  warning  the  car  was  backed,  striking  and  severely  in- 
juring her,  and  that  on  the  17th  of  May  following  she  died  from  the 
effects  of  said  injury.  The  plaintiff  commenced  this  action  to  recover 
damages  for  the  loss  of  his  wife.  He  recovered  a  judgment.  The 
case  is  brought  here  by  writ  of  error. 

The  errors  assigned  may  be  arranged  into  groups.  It  is  the  claim 
of  defendant  that  it  was  not  shown  it  was  in  any  way  responsible  for 
the  injury,  and  that  a  verdict  should  have  been  directed  in  its  favor. 
We  shall  not  attempt  to  recite  the  testimony,  but  there  was  evidence 
requiring  the  case  to  be  submitted  to  the  jury. 

The  second  group  of  errors  relates  to  the  court's  permitting  an 
.amendment  to  the  declaration.  The  result  of  the  amendment  was  to 
allow  the  plaintiff  to  appear  in  the  action,  not  as  an  individual,  enti- 
tled to  the  damages  which  he  had  sustained  as  the  husband  of  dece- 
dent because  of  her  injury  and  death,  but  as  her  personal  representa- 
tive, entitled  to  very  different  damages.  The  eft'ect  of  the  amendment 
was  to  permit  Mr.  Walker  as  an  individual  representing  one  cause  of 
action  to  get  out  of  court,  and  Mr.  Walker  as  administrator  represent- 
ing an  entirely  different  cause  of  action  to  get  into  court.  This  is  not 
permissible.  People  v.  Judges,  1  Doug.  434;  People  v.  Circuit  Judge, 
13  Mich.  206,  and  cases  cited.     Hurst  v.  Railway,  84  Mich.  539,  48 

27  There  are  numerous  cases  applying  the  same  rule.  But  if  the  court  inter- 
prets the  amendment  as  substitutnig  an  entirely  new  dofendant,  it  will  usually 
disallow  it.  See,  for  example,  Western  Railway  v.  McCall.  .89  Ala.  o75,  7 
South.  650  (1889) ;  Hughes  v.  Diamond  Match  Co.,  1  Penuewill  (Del.)  140,  39 
Atl.  772  (1897).     See,  also,  1  Ency,  PI.  &  Pr.  MO ;   3  Ency.  L.  &  P.  6G0-662. 


596 


PRINCIPLES   OF   GENERAL   APPLICATION 


(Part  3 


N.  W.  44 ;  Wood  v.  Insurance  Co.,  96  Mich.  437,  56  N.  W.  8 ;  Angell 
V.  Pruyn,  126  Mich.  16,  85  N.  W.  258,  and  the  cases  there  cited. 
Judgment  is  reversed,  and  a  new  trial  ordered.^^ 


28  An  amendment  which  changes  the  character  or  capacity  in  wliich  a  plain- 
tiff sues  is  generally  allowed  under  modern  statutes.  It  is  generally  agreed 
that,  where  the  amendment  has  the  effect  of  stating  a  new  cause  of  action, 
it  will  either  be  disallowed  or  will  be  regarded  as  a  new  cause  of  action  be- 
gun at  the  date  of  amendment.  The  dilticulty  arises  in  applying  this  rule. 
Dift'erent  courts  sometimes  reach  opposite  conclusions  upon  the  same  state  of 
facts.  Compare,  for  example,  Fitzhenry  v.  Consolidated,  etc.,  Co.,  63  N.  J. 
Law,  142,  42  Atl.  416  (1899),  and  Lower  v.  Segal,  60  N.  J.  Law,  99,  36  Atl.  777 
with  Van  Doren  v.  Pennsylvania,  etc.,  Co.,  93  Fed.  260,  .35  C.  C.  A.  282  (1897), 
and  Missouri,  etc.,  Co.  v.  Wulf,  226  U.  S.  570,  33  Sup.  Ct.  135,  57  L.  Ed.  .355, 
Ann.  Cas.  1914B,  134  (1913).  See  generally  1  Encv.  PL  &  Pr.  545 ;  3  Eucy.  L. 
&  P.  657,  668  ;•  31  Cyc.  490 ;    3  L.  R.  A.  (N.  S.)  304. 


Ch.  5)  DILATORY    OBJECTIONS  597 

CHAPTER  V 
DILATORY  OBJECTIONS 


SECTION  1.— ANTICIPATING  IN  DECLARATION 


FLANDERS  v.  ATKINSON. 

(Superior  Court  of  Judicature  of  New  Hampsliire,  1846.  18  N.  H.  J67.) 
Debt.  The  defendants  were  summoned  to  answer  to  the  plaintiff  in 
a  plea  of  debt  that  to  the  plaintiff  they  render  the  sum  of  $110,  which 
it  was  alleged  the  town  owed  to  the  plaintiff,  and  unjustly  detained 
from  him.  There  were  several  counts  in  the  writ  for  penalties  alleged 
to  have  been  incurred  for  a  neglect  to  erect  and  keep  guide  boards  at 
the  intersection  of  roads  in  said  town ;  but  the  writ  contained  no  alle- 
gation that  the  matters  alleged  were  to  the  damage  of  the  plaintiff  in 
any  sum.  The  defendant  moved  to  quash  the  writ  for  this  reason ; 
whereupon  the  plaintiff  moved  for  leave  to  amend,  to  which  the  de- 
fendants objected,  alleging  that  the  court  had  no  jurisdiction  of  the 
action. 

Woods,  J.  A  motion  is  made  to  amend  the  writ  by  inserting  the 
ad  damnum,  which  has  been  wholly  omitted.  This  motion  is  resisted, 
not  upon  the  ground  that  that  material  part  of  the  writ  does  not  come 
within  the  general  provision  of  the  statute  which  authorizes  the  courts 
to  grant  amendments,  but  because  there  is  nothing  to  show  that  the 
court  has  jurisdiction  of  the  cause.  If  the  court  has  no  jurisdiction, 
then,  by  the  decision  in  Hoit  v.  Molony,  2  N.  H.  322,  it  cannot  exer- 
cise a  discretion  in  allowing  an  amendment  to  be  made  that  would,  if 
it  could  relate  back  to  the  inception  of  the  process,  confer  jurisdiction; 
so  that  the  material  question  is  whether  the  court  of  common  pleas 
has  jurisdiction  of  the  case  without  the  amendment;  or,  in  other 
words,  whether,  in  actions  brought  in  the  court  of  common  pleas 
after  the  course  of  the  common  law,  it  is  necessary  in  pleading  to 
give  that  court  jurisdiction. 

A  general  rule  on  this  subject,  stated  as  having  been  a  well  settled 
one  and  referred  to  as  such  in  Peacock  v.  Bell,  1  Saund.  77),  is  this: 
"That  nothing  shall  be  intended  to  be  out  of  the  jurisdiction  of  a  su- 
perior court  but  that  which  specially  appears  to  be  so ;  -and,  on  the 
contrary,  nothing  shall  be  intended  to  be  within  the  jurisdiction  of  an 
inferior  court  but  that  which  is  so  expressly  alleged."  ^ 

1  "Tlie  rule  thus  clearly  laid  down  has  been  recognized  and  adopted — I  had  al- 
most said  universally — by  all  courts  from  that  day  to  this.     Wheeler  v.  Kay- 


■598  PRINCIPLES  OF   GENERAL  APPLICATION  (Part  3 

So  Lord  Hardwick,  in  The  Earl  of  Derby  v.  The  Duke  of  Athol, 
1  Ves.  202,  in  reference  to  the  same  rule,  uses  this  language:  "But  I 
cannot  put  this,  which  is  a  superior  court  of  general  jurisdiction,  in 
whose  favor  the  presumption  will  be  that  nothing  will  be  intended  to 
be  out  of  its  jurisdiction  which  is  not  alleged  and  shown  to  be  so,  upon 
the  level  with  an  inferior  court  of  a  limited  local  jurisdiction,  within 
whose  jurisdiction  nothing  shall  be  intended  to  be  which  is  not  al- 
leged to  be  so." 

These  words  are  cited  by  Lord  EHenborough,  in  The  King  v.  John- 
son, 6  East,  600,  and  numerous  cases  attest  the  general  acquiescence 
of  the  courts  in  the  rule,  and  in  its  necessary  corollary,  or  sequel,  that 
in  actions  in  inferior  courts  it  is  necessary  that  every  part  of  that 
which  is  necessary  to  bring  them  within  the  jurisdiction  must  be  set 
out.  Rex  v.  Liverpool,  4  Bur.  2244;  The  King  v,  Bagshaw,  7  T.  R. 
363;  Tower  v.  Wall,  1  do.  151. 

It  was  decided  in  Peacock  v.  Bell,  which  has  been  cited,  that  the 
court  of  the  county  palatine  of  Durham  was,  so  far  as  to  admit  the 
application  of  the  rule  laid  down,  a  superior  court.  For  although  it  is 
inferior  to  the  King's  Bench,  yet  so  also  is  the  common  bench ;  "yet  it 
is  an  original  and  superior  court,  of  which  the  law  takes  notice ;  and  so 
is  the  court  of  the  county  palatine." 

The  same  is  said  of  the  courts  of  great  sessions,  in  Wales,  county 
palatine  of  Chester,  and  the  court  of  Ely,  1  Saund.  74,  note  (1). 

The  jurisdiction  of  the  court  of  common  pleas  is  defined  by  Revised 
Statutes  1842,  c.  172,  §  3,  so  far  as  it  is  necessary  to  consider  it  with 
reference  to  the  question  presented  by  this  case. 

"The  court  of  common  pleas  shall  have  original  jurisdiction  of  all 
civil  actions  in  which  the  proceedings  shall  be  according  to  the  course 
of  tlie  common  law,  except  in  cases  where  justices  of  the  peace  have 
jurisdiction,  and  where  the  proceedings  must  be  commenced  by  writs  of 
which  the  superior  court  has  exclusive  jurisdiction." 

By  chapter  172,  §  1,  jurisdiction  is  given  to  justices  of  the  peace  of 
"all  pleas  and  actions  in  which  the  title  to  real  estate  shall  not  be 
drawn  in  question,  when  the  damages  demanded  do  not  exceed  thir- 
teen dollars  and  thirty-three  cents."  And  this  statute,  made  in  execu- 
tion of  the  power  conferred  by  the  constitution,  to  give  that  jurisdic- 
tion to  such  magistrates,  is  nearly  in  the  terms  of  the  constitution  it- 
self, and  seems  to  exhaust  the  power  it  confers. 

Now  in  comparing  these  two  courts,  as  established  by  the  statutes 
that  have  been  cited,  there  is  no  difficulty  in  determining  that  the  ju- 

mond,  8  Cow.  (N.  Y.)  311  [1S2S] ;  Foot  v.  Stevens,  17  Wend.  [N.  Y.]  4S3  [18371 ; 
Bloom  V.  Burdick,  1  Hill  [N.  Y.]  1.39,  37  Am.  Dec.  299  [1841] ;  Sir  Tiiomas  Cooke 
Winford  v.  Powell,  2  Lord  Raymond's  Eep.  1310  [1712] ;  Mills  v.  Martin,  19 
Johns.  [N.  Y.]  33  [1821] ;  Bae.  Ab.  tit.  Courts,  I).  3."  Trumbull,  J.,  in  Keimey 
V.  Greer,  13  111.  432,  448,  54  Am.  Dec.  439  (1851).  referring  to  the  above-quoted 
excerpt  from  Peacock  v.  Bell,  1  Saund.  73  (1649).  See,  also,  12  Ency.  PL  & 
Pr.  173,  notes  1  and  2,  177,  178,  notes  1  and  2 ;  11  Cyc.  691-697 ;  31  Cyc.  104, 
aiote  32,  105,  notes  33  and  34. 


Ch.  5)  DILATORY    OBJECTIONS  599 

risdiction  of  one  is  limited  to  a  certain  class  of  actions,  and  is,  in  the 
obvious  and  ordinary,  as  well  as  technical,  sense  of  the  term,  inferior ; 
while  the  jurisdiction  of  the  other,  conferred  in  general  and  very 
comprehensive  terms,  embraces  all  actions  in  which  the  proceedings 
are  after  the  course  of  the  common  law  that  do  not  fall  within  the 
peculiar  cognizance  of  justices  of  the  peace,  or  of  the  superior  court. 

Of  this  jurisdiction,  although  in  a  sense  inferior  to  that  of  the  su- 
perior court,  with  reference  to  whose  general  superintendence  of  all 
courts  in  inferior  jurisdiction,  and  other  powers  enumerated  in  the 
statute  defining  them,  all  other  courts  of  the  state  are  deemed  inferior, 
it  may  be  said  with  more  significance  than  was  said  of  the  common 
bench  and  the  courts  of  the  county  palatine,  in  the  case  last  referred 
to,  that  "it  is  an  original  and  superior  court." 

The  broad  and  residuary  terms  by  which  its  jurisdiction  is  described 
appear  to  have  been  designed  to  create  the  legal  presumption  "that 
nothing  shall  be  intended  to  be  out  of  it,  that  is  not  alleged  and  shown 
to  be  so." 

It  is  not  necessary,  therefore'  in  actions  in  the  court  of  common 
pleas,  to  bring  the  case  within  the  jurisdiction  by  the  declaration;  for 
everything  will  be  intended  to  belong  to  it  that  is  not  shown  to  belong 
to  that  of  another  court.  Jones  v.  Winchester,  6  N.  H.  497;  The 
King  V.  Johnson,. 6  East,  595. 

The  present  action  does  not  appear  to  be  one  of  those  of  which  the 
exclusive  original  cognizance  is  with  justices  of  the  peace.  The  sum 
demanded  in  damages  does  not  appear  not  to  exceed  the  limits  of  that 
jurisdiction.  There  is  nothing  apparent  on  the  face  of  the  writ  that 
gives  jurisdiction  to  any  court.  It  falls,  therefore,  into  the  general  and 
residuary  jurisdiction  of  the  superior  tribunal,  and  not  into  the  lim- 
ited and  inferior  jurisdiction  within  which  nothing  is  presumed  to  be, 
till  it  is  shown. 

The  case  is,  therefore,  within  the  jurisdiction  of  the  court  in  which 
the  action  was  brought,  and  the  amendment,  like  other  amendments  of 
form  or  of  substance,  may,  in  the  discretion  of  that  court,  be  allowed. 

The  plaintiff  has  leave  to  amend. 


BENNINGTON  IRON  CO.  v.  RUTHERFORD. 

(Supreme  Court  of  New  Jersey,  1S40.     18  N.  J.  Law,  158.) 

HoRNBLOWER,  C.  J.^  The  causes  of  demurrer  are :  First,  That 
it  does  not  appear  by  the  bill,  that  the  plaintiffs  are  a  corporation, 
or  have  any  legal  capacity  to  sue. 

The  plaintiffs  sue  by  the  name  of  "the  Bennington  Iron  Company," 
but  do  not  call  themselves  a  corporate  body,  nor  aver  that  they  are 

2  A  portion  of  the  opinion  is  omitted. 
Whit.C.L.Pl.— 39 


600  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  ^ 

such.  There  seems  to  be  some  conflict  in  the  books  on  the  question 
whether  a  corporation  must  prove  themselves  to  be  such,  on  a  plea 
of  the  general  issue,  or  whether  a  defendant,  by  pleading  to  the  merits, 
admits  their  capacity  to  sue.  Mr.  Kyd  in  his  treatise  on  Corporations^ 
vol.  1,  pp.  291,  292,  seems  to  be  of  opinion  that  a  corporation,  on  the 
general  issue  pleaded  by  the  defendant,  must  prove  their  corporate  ex- 
istence. It  was  certainly  so  held  by  Lord  Chan.  King,  in  Henriques 
v.  The  Dutch  West  India  Co.,  as  reported  in  2  Ld.  Raym.  1535.^  It 
has  been,  I  believe,  uniformly  so  held  by  the  Supreme  Court  of  New 
York.  Bank  of  United  States  v.  Haskins,  1  Johns.  Cas.  (N.  Y.)  132; 
Jackson  v.  Plumbe,  8  Johns.  (N.  Y.)  376;  Dutchess  Cotton  Manu- 
factory V.  Davis,  14  Jolins.  (N.  Y.)  238,  7  Am.  Dec.  459.  In  Bank  of 
Auburn  v.  Weed,  19  Johns.  (N.  Y.)  300,  the  question  came  directly 
before  that  court,  on  a  general  demurrer  to  a  plea  of  nul  tie!  corpora- 
tion ;  and  though  it  was  admitted  to  be  according  to  the  ancient  form 
of  pleading  in  such  cases,  yet  the  court  said  it  was  contrary  to  the 
principles  of  good  pleading  in  modern  times,  since  it  attempted  to  put 
in  issue  by  a  special  plea  in  bar  a  fact,  which  the  plaintiffs  were  bound 
to  prove  in  the  first  instance.  The  plea  was  therefore  overruled,  as 
amounting  only  to  the  general  issue.  Again,  in  Bank  of  Utica  v. 
Smalley  et  al.,  2  Cow.  (N.  Y.)  770,  14  Am,  Dec.  526,  it  was  expressly 
decided  that  the  plaintiffs  must  prove  themselves  to  be  a  corporation, 
upon  a  plea  of  the  general  issue ;  and  in  Wood  v.  Jefferson  County 
Bank,  9  Cow.  (N.  Y.)  194,  205,  the  same  rule  was  adhered  to.  The 
defendant  in  that  case  pleaded,  first,  non  assumpsit,  and,  secondly,  nul 
tiel  corporation.  To  this  latter  plea  the  plaintiffs  replied  specially, 
and  issue  was  joined;  but  it  was  held  by  the  coilrt  that  the  plea  it- 
self was  bad,  as  amounting  only  to  the  general  issue,  and  that  the  issue 
joined  upon  it  was  immaterial.  "It  is  well  settled"  the  court  say,  "that 
a  corporation  must,  upon  a  plea  of  the  general  issue,  prove  the  ex- 
istence of  the  corporation."  So  too  it  was  held  in  Utica  Ins.  Co.  v. 
Tilman,  1  Wend.  (N.  Y.)  555 ;  and  I  am  not  aware  that  the  rule  has 
ever  been  departed  from  in  that  state.  In  England,  the  same  doctrine, 
so  far  as  I  can  discover,  prevails.  In  Company  of  Carpenters,  etc., 
v.  Hayward,  Dougl.  359,  which  was  an  action  on  the  case,  the  plain- 
tiffs were  obliged  to  prove  themselves  a  corporation;  the  case  as 
reported  does  not  distinctly  state  what  the  plea  was,  but  it  seems  to 
have  been  the  general  issue.    And  it  is  clear  that  in  the  case  of  Mayor, 

3  "The  authorities  referred  to  by  the  plaintiff  rest  for  support  principally 
on  the  case  of  Henriques  v.  Dutch  West  India '  Company,  2  Lord  Raymond, 
1532  (1729) ;  but  an  examination  of  that  case  will  show  tliat  the  point  was  not 
decided.  *  *  *  n  jg  y^^.y  certain  that  the  point  under  discussion  did  not, 
and  could  not,  arise  in  judgment  either  in  the  King's  Bench,  or  House  of  Lords. 
And  this  ease  is  no  authority  in  support  of  the  position  that  the  plaintiffs,  un- 
der the  genera]  issue,  must  prove  their  corporate  character,  unless  it  can  be 
considered  that  the  statements  of  counsel  arguendo,  or  the  loose  note  of  the 
reporter,  as  to  what  Lord  King  told  him  took  place  on  the  trial  in  the  Com- 
tQon  I'leas,  can  be  so  considered."  Ormond,  J.,  in  Prince  v.  Commercial  Bank, 
1  Ala.  241,  243,  34  Am.  Dec.  773  (1840). 


Ch.  5)  DILATORY   OBJECTIONS  601 

etc.,  of  Linn  Regis  v.  Payne,  10  Co.  120,  in  which  the  general  issue 
only  was  pleaded,  the  name  and  existence  of  the  corporation  was  the 
principal  matter  inquired  into. 

But  in  Conard  v.  Atlantic  Ins.  Co.,  1  Pet.  450,  7  L.  Ed.  189,  Mr. 
Justice  Story  says :  "By  pleading  to  the  merits,  the  defendant  neces- 
sarily admitted  the  capacity  of  the  plaintiffs  to  sue.  If  he  intended 
to  take  the  exception,  it  should  have  been  done  by  plea  in  abatement; 
and  his  omission  to  do  so  was  a  barrier  of  this  objection."  If  by  a 
plea  in  abatement  the  judge  means  that  kind  of  dilatory  plea  which  is, 
strictly  speaking,  a  plea  in  abatement,  as  distinguished  from  pleas  to 
the  jurisdiction,  and  pleas  to  the  disability  of  the  plaintiff  (3  Bl.  Com. 
301 ;  Gould's  pi.  229,  §  10),  then  I  do  not  see  how  the  entire  incapacity 
of  the  plaintiffs  to  sue  at  all  would  be  matter  for  a  plea  in  abatement. 
Such  plea  must  always  give  the  plaintiff  a  better  writ.  Gould's  pi. 
254,  §  67 ;  3  Bl.  Com.  302.  If  the  plaintiffs  were  not  a  corporation, 
they  could  not  sue  at  all,  as  such ;  and  the  plea  could  not  give  them  a 
better  writ.  If,  therefore,  a  corporation  is  not  bound  to  prove  its  ex- 
istence upon  the  general  issue,  I  see  no  way  in  which  a  defendant  can 
compel  the  plaintiffs  to  such  proof  but  by  pleading  nul  tiel  corpora- 
tion, which,  like  the  plea  of  no  such  person  in  rerum  natura,  to  an 
action  brought  by  a  natural  person,  is  a  plea  to  the  disability  of  the 
plaintiff.  Such  pleas  are  not,  correctly  speaking,  pleas  in  abatement, 
for  the  former  pleas,  sometimes  go  to  defeat  the  suit  entirely,  and 
sometimes  only  to  suspend  it  until  the  disability  be  removed.  Gould's 
pi.  239,  §  31;  Id.  250,  §  58;  Id.  251,  §  60.  In  Mayor,  etc.,  of  Staf- 
ford v.  Bolton,  1  Bos.  &  Pul.  40,  which  was  an  action  on  the  case,  the 
plea  was  not  guilty;  on  the  trial  the  plaintiffs  gave  in  evidence  their 
charter  of  incorporation.  The  defendants  objected  that  there  was  a 
variance  between  the  name  of  the  corporation  in  the  charter  and  that 
in  the  declaration ;  upon  which  the  plaintiffs  were  nonsuited.  But 
this  nonsuit  was  set  aside  by  Eyre,  C.  J.,  and  all  the  Judges,  upon  the 
ground  that  it  was  a  mere  misnomer,  and  that  the  variance  might  have 
been,  and  therefore  ought  to  have  been,  pleaded  in  abatement.  So, 
in  Bank  of  Utica  v.  Smalley  et  al.,  2  Cow.  (N.  Y.)  770,  14  Am.  Dec. 
526,  the  plaintiffs  were  incorporated  by  the  name  of  "The  President, 
Directors  and  Company"  of  etc. ;  but  the  suit  was  brought  by  "The 
President  and  Directors"  of  etc.  A  majority  of  the  court  held  that 
it  was  a  mere  misnomer,  and  ought  to  have  been  pleaded  in  abate- 
ment ;  but  Savage,  Chief  Justice,  was  of  opinion  that  the  variance  was 
fatal  on  the  general  issue ;  and  then  again,  I  remember  an  ejectment, 
many  years  ago,  tried  before  Chief  Justice  Kirkpatrick  in  the  Essex 
Circuit,  on  the  demise  of  the  Rector  Churchwardens  and  Vestrymen  of 
Trinity  Church  at  Newark.  Upon  producing  the  charter  it  appeared 
that  after  the  word  "Newark"  was  added,  "elected  and  chosen  accord- 
ing to  the  canons  of  the  church  of  England,  as  by  law  established." 
The  latter  words,  the  Chief  Justice  held  to  be  part  of  the  corporate 
name,  and  nonsuited  the  plaintiff. 


G02  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3 

In  Burnham  v.  Strafford  Savings  Bank,  5  N.  H.  446,  it  was  held, 
by  Richardson,  C.  J.,  that  a  misnomer  in  the  case  of  a  corporation  must 
be  pleaded  in  abatement,  but  that  a  material  and  substantial  mistake 
of  the  name  will  not  warrant  any  proceedings.  It  cannot  be  regard- 
ed, in  such  case,  as  a  suit  (by  or)  against  a  corporation;  and  see 
Briggs  V.  Nantucket  Bank,  5  Mass.  94;  Medway  Cotton  Manufactory 
V.  Adams,  10  Mass.  360;  Society  for  Propagating  the  Gospel  v. 
Young,  2  N.  H.  313;  Bullard  v.  Nantucket  Bank,  5  Mass.  101;  2 
Stark.  Evid.  424. 

I  have  extended  my  researches  and  my  remarks,  on  this  point  (further 
perhaps  than  was  necessary)  because  the  question  has  not,  so  far  as  I 
know,  been  settled  in  this  state  whether  a  corporation  plaintiff  must 
prove  its  existence  under  the  general  issue ;  *  or  whether  it  can  only 
be  compelled  to  such  proof,  by  a  plea  of  nul  tiel  corporation.  But 
be  this  as  it  may  (and  on  this  point  I  give  no  opinion),  it  is  now  well 
settled  that  a  foreign  corporation,  public  or  private,  may  maintain  a 
personal  action  in  our  courts,  and  that  it  is  not  necessary  in  any  case, 
whether  of  a  public  or  private  corporation,  foreign  or  domestic,  to  set 
out  in  the  declaration,  the  manner  of  its  creation.  Several  of  the  cases 
already  cited  establish  these  positions.  In  Portsmouth  Livery  Co.  v. 
Watson  et  al.,  10  Mass.  91,  the  defendants  pleaded,  in  abatement,  that 
plaintiffs  were  not  incorporated  by  the  legislature  of  Massachusetts, 
or  under  any  authority  of  that  state.  Upon  a  general  demurrer  to  that 
plea,  the  court  said  that  the  principle  assumed  by  the  plea  had  no  foun- 
dation in  any  maxim,  or  in  any  argument  of  public  convenience  or 
policy;  that  in  many  instances,  and  for  many  purposes,  foreign  cor- 
porations were  recognized,  especially  those  created  by  the  laws  of  any 
of  the  United  States ;  that  of  the  existence  of  public  corporations  with- 
in the  state  the-  court  must  take  judicial  notice,  as  they  must  of  all 
other  public  statutes ;  and  as  to  private  corporations  of  that  state, 
and  all  foreign  corporations,  whether  public  or  private,  their  existence 
must  be  proved,  by  legal  evidence,  as  every  other  material  fact  must 
be  proved  on  an  issue  to  the  country.  So  in  the  case  cited  from  1 
Johns.  Cas.  132,  the  defendant  pleaded,  in  abatement,  that  plaintiffs 
had  not  set  forth  any  charter  or  act  of  incorporation ;  but  it  was  held 
to  be  unnecessary,  and  the  plea  was  overruled. 

But  still  it  is  insisted,  and  such  is  the  doctrine  assumed  by  the  de- 
murrer in  this  case,  that  the  plaintiff's  must  call  themselves  a  body 
politic  and  corporate,  or  aver  themselves  to.be  such.  In  the  forms  and 
books  of  entries,  as  well  as  in  our  own  practice,  the  precedents  are 
both  ways;  but  since  a  corporation  may  sue,  without  setting  forth  in 
the  declaration  how,  when  or  by  what  authority  they  were  incorporat- 
ed, why  should  it  be  necessary  to  aver  the  fact  that  they  are  incor- 

4  This  question  was  settled,  in  accord  with  the  weiarlit  of  authority,  in  Star 
Brick  Co.  v.  Ridsdale,  36  N.  J.  Law,  229  (1873),  which  held  that  under  the 
general  issue  a  corporation  plaintiff  need  not  prove  its  corporate  existence. 
See  further  on  this  point.     5  Ency.  PL  &  Pr.  77,  78 ;   10  Gyc.  1354,  notes  3  and  4. 


Ch.  5)  DILATORY   OBJECTIONS  603 

porated  at  all  ?  Why  not  sue  generally,  in  their  corporate  name ;  since 
either  upon  the  general  issue,  or  upon  a  plea  of  nul  tiel  corporation, 
or  a  plea  in  abatement,  whichever,  upon  advisement,  may  be  deemed 
the  proper  mode  of  defence,  they  may  be  compelled  to  prove  them- 
selves a  corporation,  by  the  name  in  which  they  have  sued?  Kyd  on 
Corporations,  vol.  1,  pp.  191,  192,  after  saying  that  a  corporation  need 
not  show  how  they  were  incorporated,  adds,  "For  if  the  name  be  prop- 
er for  a  corporation,  that  argues  (indicates)  that  they  are  such,"  thus 
plainly  intimating  his  opinion,  that  they  need  not  call  or  aver  them- 
selves to  be  a  corporation. 

It  is  said,  however,  the  words  "the  Bennington  Iron  Company"  do 
not  import  a  corporation.  It  seems  to  me  very  immaterial  whether 
they  do  or  not.  The  plaintiffs  have  a  legal  existence  and  capacity  to 
sue  by  the  name  they  have  used,  or  they  have  not;  and  if  the  defend- 
ant questions  their  corporate  existence  or  capacity  to  sue  by  that  name, 
he  may,  in  one  of  the  wa3'S  I  have  mentioned,  compel  them  to  prove 
by  legal  and  competent  evidence,  their  corporate  existence  and  their 
name.  It  would  not  be  dif6cult  to  mention  some  natural  persons, 
whose  names  as  little  import  that  they  are  such,  as  that  of  the  plain- 
tiffs in  this  cause  does  their  existence  as  a  corporation.  Yet,  in  a  suit 
brought  by  one  of  those  persons,  it  would  not  be  necessary  for  him 
to  aver  that  he  was  a  human  being. 

In  Rees  v.  C.  Bank,  5  Rand.  (Va.)  326,  16  Am.  Dec.  755,  and  in 
Bank  of  Marietta  v.  Pindall,  2  Rand.  (Va.)  465,  as  they  have  been 
condensed  by  Wheeler  in  3  Amer.  Com.  Law,  474,  it  was  held  that,  in  a 
suit  by  a  corporation,  it  need  not  be  averred  in  the  declaration  that 
they  are  incorporated  and  have  a  right  to  sue ;  because  the  question 
whether  or  not  they  are  a  corporation  may  be  put  in  issue  by  a  plea, 
or  inquired  into  upon  the  general  issue.  The  same  point  has  been  ex- 
pressly ruled  by  the  Supreme  Court  of  Indiana,  in  Harris  v.  Muskin- 
gum Manufacturing  Company,  4  Blackf.  267,  29  Am.  Dec.  372.  Upon 
the  authority  of  these  cases,  as  well  as  upon  the  reason  of  the  thing, 
I  am  satisfied  there  is  nothing  in  this  exception.     *     *     * 

Demurrer  overruled.^ 

5  The  great  weight  of  authority  at  common  law  is  in  accord.  See  5  Ency. 
PI.  &  Pr.  70-74,  and  cases  cited ;    10  Cyc.  1347-1.3.50,  and  cases  cited. 

Other  matters  going  to  the  disability  of  plaintiff  to  sue,  at  common  law. 
were  coverture,  infancy,  outlawry,  attainder,  excommunication  and  alienage. 
When  not  appearing  affirmatively  in  the  declaration,  usually  the  only  method 
of  taking  advantage  of  them  was  by  dilatory  plea.  See  Gould,  Pleading  (Ham- 
ilton's Ed.)  238-247. 


604 


PRINCIPLES  OF   GENERAL  APPLICATION 


(Part  3 


BURGESS  V.  ABBOTT. 

(Supreme  Court  of  New  York,  1S41.    1  Hill,  47G.) 

Error  from  the  superior  court  of  the  city  of  New  York.  The  ac- 
tion below  was  debt,  brought  by  Abbott  and  Ely  against  Burgess. 
The  declaration  was  on  a  judgment  of  the  superior  court  of  Cin- 
cinnati, Ohio,  rendered  against  Burgess  and  one  Henry  Crane;  but 
it  did  not  expressly  show  whether  Crane,  at  the  time  of  the  commence- 
ment of  the  present  suit  was  living  or  not.  The  defendant  demurred 
generally,  and  the  plaintiffs  joined  in  demurrer.  Judgment  having 
been  rendered  for  the  plaintiffs  in  the  court  below,  the  defendant  sued 
out  a  writ  of  error. 

Cow^N,  J.  It  is  treated  by  the  books  as  clear  that,  when  a  declara- 
tion or  other  pleading  of  the  plaintiff,  in  an  action  against  one  upon 
a  contract,  shews  that  he  is  a  joint  contractor,  with  another  not  sued, 
saying,  moreover,  in  express  terms,  that  the  contractor  not  sued  is 
still  living,  the  defendant  shall  not  be  put  to  his  plea  in  abatement,  but 
may  demur,*^  or  move  in  arrest,^  or  maintain  error  ^  in  case  of  a  ver- 
dict against  him.  1  Chit.  PI.  46  (Am.  Ed.  of  1840),  and  the  cases 
there  cited.  If  it  do  not  "thus  appear  in  terms  that  the  party  omit- 
ted is  still  alive,  the  question  seems  to  be  open  whether  the  nonjoinder 
must  not  be  pleaded  in  abatement.  A  case  in  the  Year  Book  (28  H. 
6.  3,  a,  pi.  11)  and  Cabell  v.  Vaughan  (1  Saund.  291,  1  Ventr.  34,  s. 
c,  1  Sid.  420,  s.  c,  nom.  Chappel  v.  Vaughan)  are  strong  cases  that 
it  must.  Vid.  1  Saund.  291,  a,  note  2.  These  cases  are  considered 
in  1  Saund.  291,  b,  note  (4),  and  several  subsequent  cases  cited;  and 
some  being  of  an  equivocal  character  in  the  report  are  sought  to  be 
reconciled.  The-  learned  annotator,  himself  a  very  .high  authority, 
thinks  that  the  principle  governing  a  plea  of  nonjoinder  in  abatement, 
where  you  must  always  aver  full  life,  would  seem  to  demand  the 
same  averment  on  the  other  side,  when  the  objection  is  founded  up- 
on what  appears  there.  The  rule  is  that  you  need  not  plead- in  abate- 
ment a  matter  with  which  you  are  already  furnished  by  the  plaintiff's 
own  pleadings.  Eyre,  C.  J.,  in  Scott  v.  Godwin,  1  Bos.  &  Pull.  73. 
But  in  order  to  satisfy  this  rule  you  must  .be  furnished  by  him  with 
every  material  fact.  If  he  do  not  aver  life,  therefore,  it  follows  that 
you  must  aver  it  by  plea;  for  in  availing  yourself  of  mere  abatable 
matters,  great  fullness  is  required ;  and  courts  will  not,  in  this  respect, 
help  pleaders  by  intendment.  Nonjoinder  of  a  defendant  is  no  more 
than  abatable  matter,  in  whatever  form  it  may  appear,  and  is  consid- 


6  Ranev  v.  McRae,  14  Ga.  5S9,  60  Am.  Dec.  G60  (1S54),  semble ;  Smith  v. 
Miller,  49  N.  J.  Law,  521,  13  Atl.  .39  (1SS7) ;  Oilman  v.  Rives,  10  Pet.  29S,  9 
L.  Ed.  432  (1S36),  semble.     Accord. 

7  Belden  v.  Curtis,  48  Conn.  32  (1880),  semble;  Raney  v.  McRae,  supra, 
semble ;    Oilman  v.  Rives,  supra,  semble.     Accord. 

8  Raney  v.  McRae,  supra,  semble.     Accord. 


Ch.  5)  DILATORY    OBJECTIONS  605 

ered  rather  an  ungracious  objection,  as  may  be  seen  by  Rice  v.  Shute, 
5  Burr.  2611,  2613.  See  the  case  of  Horner  v.  Moor,  cited  by  Aston, 
J.  (Id.  2614),  which  favors  the  doctrine  in  the  note  to  Saunders. 

On  the  other  hand  we  have  been  referred  to  several  cases  of  non- 
joinder on  the  side  of  the  plaintiff.  In  these  it  is  held  fatal  if  he  shew 
nonjoinder  simply,  even  without  expressly  averring  life  in  the  party 
off  the  record.^  But  this  objection  is  always  received  with  much  less 
disfavor  than  a  nonjoinder  of  defendants.  The  plaintiff  knows  his 
associates,  whereas  he  is  often  ignorant  of  those  on  the  other  side. 
Hence  the  ordinary  intendment  is  allowed  against  him.  And  the  dif- 
ference between  the  two  cases  will  be  found  to  have  been  put  upon  this 
ground  in  Scott  v.  Godwin,  1  Bos.  &  Pull.  73,  74,  in  a  very  learned 
opinion  of  Eyre,  C.  ].^°  Addison  v.  Overend,  6  T.  R.  766,  is  the 
strongest,  among  that  class  of  cases,  in  favor  of  the  plaintiff  in  error. 

The  King  v.  Young,  2  Anstr.  448,  held  the  doctrine  contended  for 
by  the  plaintiff  in  error  more  directly.  The  suit  was  on  a  recognizance, 
and  McDonald,  Chief  Baron,  lays  down  the  rule  that,  if  the  non- 
joinder of  a  defendant  appear  by  the  declaration,  it  is  bad,  irrespective 
of  any  averment  of  life.  But  that  case  went  on  Blackwell  v.  Ashton, 
Aleyn,  21,  which  qualifies  the  rule  by  confining  it  to  scire  facias  on  a 
record  and  conceding  that  full  life  must  appear  to  have  been  averred 
in  case  of  a  bond.  Whether  there  be  anything  in  the  distinction  at 
this  day  may  be  doubted.^ '^  Lawrence,  J.,  too,  in  South  v.  Tanner,  2 
Taunt.  256,  says,  when  speaking  of  the  point,  that  "a  person  sued 
as  living,  is  presumed  to  continue  alive" ;  but  the  point  decided  by  that 
case  was  different,  and  the  remark  was  made  as  a  reply  to  counsel 
in  the  course  of  their  argument.  A  case  subsequent  to  that  of  The 
King  v.  Young  in  the  court  of  exchequer,  would  seem,  however,  fully 
to  bear  him  out;  viz.,  The  King  v.  Chapman,  Anstr.  811,  which  was 
scire  facias  on  an  auctioneer's  bond.  The  Lord  Chief  Baron  said 
the  court  could  not  distinguish  it  from  The  King  v.  Young.  The  coun- 
sel, Marryatt,  arguendo,  spoke  of  the  contrary  rule  as  being  a  very 
idle  one,  saying,  "it  is  impossible  to  believe  that  the  fact  of  the  co- 
obligor  being  alive  could  appear  on  the  face  of  the  declaration." 

In  Whitaker  v.  Young,  2  Cow.  569,  it  seems  to  have  been  taken 
for  granted  that  the  declaration  shewed  life  in  the  heir  not  sued,  who 
was  stated  in  the  declaration  as  still  refusing  with  the  others  to  pay 
the  debt.  The  objection  that  such  an  averment  had  been  omitted  was 
not  made,  and  the  court  cite  and  approve  the  rule  in  an  old  edition  of  1 
Chit.  Plead.,  put  there  with  the  same  qualification  as  in  the  last. 
Other  American  courts  have,  however,  followed  the  rule  of  the  Eng- 

9  For  many  cases  accord,  see  15  Ency.  PI.  &  Pr.  564 ;  1  C.  J.  125 ;  1  Smith's 
Leading  Cas.  (Stti  Am.  Ed.)  1414 ;  1  William's  Saund.  154,  note  1,  291b,  note 
4  at  201h,  et  seq. 

10  See  Prunty  v.  Mitcliell,  infra,  note  IS,  p.  610. 

11  Tills  distinction  is  recognized  in  Oilman  v.  Rives,  10  Pet.  29S,  9  L.  Ed. 
432  (1836).     See,  also,  Hamilton  v.  Buxton,  6  Ark.  24  (1845),  semble. 


606  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

lish  exchequer,  applying  it  to  the  nonjoinder  of  a  co-contractor,  by- 
bond  or  simple  contract,  appearing  in  the  declaration,  though  not  ac- 
companied by  the  express  averment  that  he  is  living.^^  Leftwich  v. 
Berkeley,  1  Hen.  &  M.  (Va.)  61 ;  Newell  v.  Wood,  1  Munf.  (Va.)  555 ; 
Harwood  v.  Roberts,  5  Greenl.  (Me.)  441.  See,  also,  what  was  said 
in  Blackwell  v.  Ashton,  Styles,  50;  also  Osborne  v.  Crosbern,  1  Sid. 
238. 

I  have  not  looked  into  any  other  cases.  Enough  have  been  cited  to 
show  their  exceeding  conflict;  but  I  am  inclined  to  think  that  the 
ancient  and  true  rule  in  England  is  the  one  laid  down  by  Williams  in 
his  note  to  Saunders,  already  noticed.  It  is  in  harmony  with  the  nature 
of  the  plea  of  nonjoinder,  and  with  the  policy  of  discouraging  dilatory 
pleas,  which  seems  to  have  attached  directly  to  abatement  for  non- 
joinder of  defendants,  whether  objected  on  the  declaration  or  inter- 
posed by  plea,  so  early  as  the  Year  Book  of  Hen.  6.  The  present 
question,  it  is  true,  arises  on  a  demurrer  to  the  first  count  of  a  dec- 
laration on  a  judgment  rendered  in  a  court  of  record  of  the  state 
of  Ohio.  But,  even  had  it  been  scire  facias  on  a  domestic  judgment, 
it  is  quite  difficult  to  perceive  how  the  question  could  be  varied  by 
that  circumstance,  notwithstanding  the  case  of  The  King  v.  Young 
in  the  exchequer. 

The  question  is  certainly  beset  with  difficulties  more  pressing  than 
I  supposed  on  the  argument ;  for  it  was  not  till  after  that  I  had  heard 
or  seen  anything  of  the  decisions  in  the  learned  courts  of  Virginia  and 
Maine. 

My  principal  object  has  been  to  inform  myself  of  the  English  rule 
as  it  stood  at  the  time  of  our  revolution;  and  I  am  satisfied,  though 
not  without  some  hesitation,  that  it  is  in  favor  of  the  defendants  in 
error,  and  therefore  that  the  superior  court  decided  rightly. 

Judgment  affirmed. ^^ 

12  In  addition  to  ttie  cases  cited,  see  Cummings  v.  People,  50  III.  132  (1869: 
error) ;  Kent  v.  Holliday,  17  Md.  387  (1S61 :  demurrer) ;  Delcourt  v.  White- 
house,  92  Me.  254,  42  Atl.  394  (1S9S :  demurrer),  semble;  McGregor  v.  Bulch, 
17  Vt.  562  (1S45 :  demuiTer,  arrest,  error),  semble ;  Gould,  Pleading  (Hamil- 
ton's Ed.)  271;    1  Smith's  Leading  Cas.  (Sth  Am.  Ed.)  1409,   1410.     Accord. 

13  Hamilton  v.  Buxton,  6  Ark,  24  (1845),  semble;  Belden  v.  Curtis,  48  Conn. 
32  (1880 :  one  ground,  arrest) ;  Commonwealth  v.  Davis,  9  B.  Mon.  (Ky.)  12S 
(1848 :  demurrer) ;  Lillard  y.  Planter's  Bank,  3  How.  (Miss.)  78  (1838 :  demur- 
rer);  Nealley  v.  Moulton,  12  N.  H.  485  (1842:  arrest);  Burgess  v.  Abbott, 
6  Hill  (N.  Y.)  135  (1843 :  demurrer,  query  as  to  special  denuirrer) ;  Geddis  v. 
Hawk,  10  Serg.  &  R.  (Pa.)  33  (1823:    error),  senible.     Accord. 

It  has  been  held  that,  even  where  the  nonjoinder  appears  on  the  face  of 
plaintiff's  pleadings,  it  can  be  taken  advantage  of  only  by  plea  in  abatement. 
Gray  v.  Sharp,  62  N,  J.  Law,  102,  40  Atl.  771  (1898).  See,  also,  Nealley  v. 
Moulton,  12  N.  H.  485  (1842). 

A  mis.ioinder  of  parties  plaintiff  or  defendant  in  actions  ex  contractu,  if  ap- 
parent on  the  face  of  the  record,  is  subject  to  attack  by  demurrer,  motion  in 
arrest  of  judgment  or  on  error.  15  Ency.  PI.  &  Pr.  581,  notes  2,  3,  4,  583, 
note  1 ;  1  C.  J.  131,  note  25,  132,  note  38.  The  same  is  tnie  of  misjoinder 
of  plaintiffs  in  tort.  1  C.  J.  131,  note  29 ;  15  Ency.  PI.  &  Pr.  581,  582.  But 
nonjoinder  of  plaintiffs  in  tort,  even  though  a})pearing  on  the  face  of  plain- 


Ch,  5)  DILATORY   OBJECTIONS  607 

SECTION  2.— PLEAS  TO  THE  MERITS,  ETC. 


MORTON  V.  SWEETSER. 

(Supreme  Judicial  Court  of  :Massacliusetts,  1866.     12  Allen,  134.) 

Replevin  of  a  horse,  commenced  before  a  justice  of  the  peace  on 
the  26th  of  July,  1864.  The  defendant  was  defaulted  before  the  jus- 
tice, and  appealed  to  September  term,  1864,  of  the  superior  court.  On 
the  seventh  day  of  the  term  he  moved  to  dismiss,  on  the  ground  that 
another  suit  between  the  parties  for  the  same  cause  of  action  was 
pending  in  that  court;  and  three  days  after  filed  an  answer,  entitled 
simply,  "Answer,"  beginning  thus,  "And  now  the  defendant  comes 
and  for  answer  says  that  he  denies  each  and  every  allegation  in  the 
plaintiff's  writ  and  declaration,"  denying  the  defendant's  possession 
at  the  date  of  the  replevin,  arfd  the  plaintiff's  property  and  right  of 
possession,  and  concluding  by  alleging  "that  there  is  now  pending  an- 
other suit  between  the  said  parties  concerning  the  same  subject  mat- 
ter in  the  said  court,  and  that  during  the  pendency  of  said  suit  the 
above  named  suit  cannot  be  maintained  and  the  plaintiff  has  no  cause 
of  action  thereon."  Vose,  J.,  on  inspection  of  the  record,  being  of 
opinion  that  another  suit  was  pending,  ordered  the  present  suit  to  be 
dismissed ;   and  the  plaintiff  alleged  exceptions. 

Colt,  J.  The  pendency  of  another  action  for  the  same  cause  be- 
tween the  same  parties  can  be  taken  advantage  of  only  by  plea,  and, 
as  a  general  rule,  only  by  plea  in  abatement.  It  is  a  defence  which 
arises  from  matters  which  do  not  appear  upon  the  face  of  the  record, 
and  it  must  be  alleged  by  plea,  that  it  may  be  traversed,  put  in  issue 
and  tried,  if  it  is  not  admitted  by  demurrer. 

A  motion  to  dismiss  the  action  can  only  be  sustained  for  some  mat- 
ter apparent  on  the  record.  If  upon  the  papers  in  the  case  there  is 
no  fact  which  can  be  disputed  upon  which  the  defendant  relies,  it  is 
a  proper  case  for  a  motion  to  dismiss.  In  Nye  v.  Liscombe,  21  Pick. 
266,  Shaw,  C.  J.,  says :  "Where  all  the  facts  upon  which  the  claim  to 
have  the  process  abated  is  founded  appear  by  the  record,  including 
the  return  of  the  officer,  of  which  the  court  will  take  notice  without 
plea,  there  the  action  may  be  dismissed  on  motion.  In  that  case  the 
motion  is  not  intended  to  state  new  facts,  but  merely  to  bring  to  the 
attention  of  the  court,  and  also  to  furnish  notice  to  the  other  party, 
of  those  facts  appearing  on  the  record  and  return  which  of  themselves 
are  sufficient  to  show  that  the  action  cannot  be  properly  proceeded 

tiff's  pleadings,  cannot  be  reached  by  demurrer  or  motion  in  arrest  of  judg- 
ment. May  V.  Western  Union,  112  Mass.  90  (1873) ;  Deal  v.  Bogue,  20  Pa. 
228,  57  Am.  Dec.  702  (1853),  semble;  True  v.  Congdon,  44  N.  H.  48  (1862), 
semble ;  Addison  v.  Overend,  6  D.  &  E.  766.  Accord.  Bell  v.  Layman,  1  T.^ 
B.  Mon.  (Ky.)  39,  15  Am.  Dec.  83  (1824),  semble.     Contra. 


608  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

in  for  want  of  due  service,  or  other  defect  in  the  proceedings."  Kit- 
tridge  v.  Bancroft,  1  Mete.  508;  Amidown  v.  Peck,  11  Mete.  467. 
Buffum  V.  Tilton,  17  Pick.  510.^^ 

Applying  these  rules,  it  is  plain  that  the  court  erred  in  ordering  this 
action  to  be  dismissed  on  motion.  The  pendency  of  another  action 
was  a  fact  outside  the  record  in  this  case,  which  the  defendant  had  a 
right  to  dispute.  It  would  ordinarily  be  settled  by  the  production  of 
the  record  in  the  other  case ;  but  the  plaintiff  had  the  right  to  dispute 
the  existence  of  such  record,  or,  admitting  its  existence,  to  reply  and 
prove,  in  answer  to  the  defendant's  plea,  that  the  cause  of  action, 
though  by  the  record  apparently  the  same,  was  not  so  in  fact.  The 
course  pursued  deprived  the  plaintiff  of  the  opportunity  of  showing 
that  the  property  replevied  was  on  the  day  of  the  commencement  of 
the  second  action  unlawfully  held  and  detained  by  the  defendant,  and 
that  a  new  cause  of  action  had  arisen  against  the  defendant  for  such 
detention.    Walbridge  v.  Shaw,  7  Cush.  560. 

Exceptions  sustained. 

At  the  second  trial  in  the  superior  court,  before  Putnam,  J.,  two 
questions  were  submitted  by  agreement  of  parties  to  the  jury,  who 
found  that  the  horse  was  the  property  of  the  plaintiff,  and  was  in  the 
possession  or  control  of  the  defendant  at  the  time  of  the  service  of 
the  writ;  and  the  parties  agreed  that  the  case,  taking  these  facts  as 
found,  should  be  tried  by  the  court. 

It  appeared  in  evidence  that  an  action  of  replevin  had  been  brought 
by  the  plaintiff  against  the  defendant  on  the  29th  of  June,  1864,  for 
the  same  horse  before  the  same  magistrate,  who  dismissed  that  ac- 
tion for  informality  in  the  bond,  but  refused  a  return  of  the  property ; 
that  the  defendant  appealed  to  the  superior  court,  which  at  September 
term,  1865,  rendered  judgment,  dismissing  the  action  and  ordering  a 
return,  on  which  execution  was  issued  and  was  still  unsatisfied.  Upon 
these  facts  appearing  by  the  records  of  the  magistrate  and  of  the  su- 
perior court,  the  judge,  on  the  plaintiff's  motion,  allowed  that  record 
of  the  magistrate  to  be  recommitted  to  him  for  amendment ;  and  the 
magistrate  returned  an  amended  record,  showing  that  no  appeal  was 
ever  taken  from  his  judgment  in  this  case,  which  record  the  judge, 
against  the  objection  of  the  defendant,  allowed  to.  be  filed ;  and  upon 
this  evidence  found,  as  a  fact,  that  there  was  no  suit  pending  for  the 
same  cause  of  action  when  the  present  suit  was  commenced,  and  also 
found  that  the  horse  remained  in  the  possession  of  the  plaintiff  after 
it  was  taken  upon  the  first  writ  until  the  day  of  the  service  of  the  sec- 
ond writ,  when,  just  before  such  service,  it  was  returned  to  the  de- 

14  See,  also,  Case  v.  TTuinphrey,  6  Conn.  1.30,  140  (1826:  record  shows  no 
proper  sendee  of  writ) ;  Tweedy  v.  Jarvis,  27  Conn.  42  (1S5S :  record  shows 
nonjoinder  of  necessary  party);  Adams  v.  Leland,  7  Piclv.  (Mass.)  62  (1828: 
plaintiff  himself  suggests  disability),  semble ;  Mantz  v.  Hendley,  2  Hen.  & 
M.  (Va.)  30S  (1808:  record  shows  fatal  defects  in  attachment) ;  Hilton  v. 
Consmuers'  Can  Co.,  103  Va.  255,  48  S.  E.  899  (1904:  record  shows  fatal  de- 
fects in  service  of  process). 


Ch.  5)  DILATORY   OBJECTIONS  609 

fendant,  and  upon  all  the  facts  thus  found  gave  judgment  for  the 
plaintiff.  The  defendant  alleged  exceptions;  and  the  judge  reported 
the  whole  case  for  the  determination  of  this  court,  before  which  it 
was  argued  upon  this  report  in  January,  1867,  by  the  same  counsel. 

Gray,  J.  The  report  of  the  judge  who  presided  at  the  trial  in  the 
superior  court  submits  the  whole  case  to  the  determination  of  this 
court. 

The  pendency  of  a  prior  action  ^^  between  the  same  parties  for  the 
same  cause  ^®  must  be  pleaded  in  abatement, ^'^  whenever,  as  in  this 
case,  it  denies  only  the  plaintiff's  right  to  maintain  the  particular  ac- 
tion, and  does  not  go  to  his  whole  title,  as  in  the  case  of  an  action 
qui  tam,  which  vests  the  property  of  the  thing  in  action  in  the  party 
who  first  sues  for  it,  and  so  bars  all  title  of  any  person  who  may 
afterwards  bring  a  like  suit  for  the  same  thing.  1  Chit.  PI.  (6th  Amer. 
Ed.)  488 ;  3  Chit.  PI.  (6th  Amer.  Ed.)  903 ;  Engle  v.  Nelson,  1  Pen. 
&  W.  (Pa.)  442.  Matter  in  abatement,  which  only  delays  the  right 
to  sue  by  defeating  the  particular  action,  cannot  be  pleaded  in  the  same 
plea  or  answer  with  matter  in  bar  of  all  right  of  action,  but  must  be 
pleaded,  if  then  existing,  before  answering  to  the  merits ;  else  it  is 
to  be  deemed  to  have  been  waived.  Com.  Dig.  Abatement,  I,  23.  Pratt 
V.  Sanger,  4  Gray,  88;  Gen.  St.  1860,  c.  129,  §  40.  The  answer  in  this 
action  has  nothing,  in  title  or  form,  of  a  plea  or  answer  in  abatement ; 
and  all  the  other  defences  stated  in  it  are  matters  pleadable  in  bar  only. 
The  defendant  therefore  could  not  under  this  answer,  or  under  any 
amendment  thereof,  avail  himself  of  the  defence  that  a  prior  action 
was  pending  when  this  one  was  commenced. 

The  judgment  for  the  defendant  in  the  other  action,  not  having  been 
rendered  upon  the  merits,  but  solely  for  informality  in  the  replevin 
bond,  is  no  bar  to  this  suit.    Walbridge  v.  Shaw,  7  Cush.  560. 

It  is  therefore  unnecessary  to  consider  the  validity  or  effect  of  the 
amendment  of  the  magistrate's  record  in  the  other  action  after  final 
judgment  therein  in  the  superior  court. 

Judgment  for  the  plaintiff. 

15  The  modern  rule  is  that  the  plea  must  show  the  action  to  be  pending 
at  the  time  of  plea  pleaded  as  well  as  at  the  time  of  action  brought.  1  Ency. 
PI.  &  Pr.  7.55;  1  C.  J.  9-1,  note  70;  Manufacturers'  Co.  v.  Taylor-Stites  Co., 
208  Mass.  593.  95  N.  E.  103  (1911).  But  some  courts  adhere  to  the  ancient  rule 
that  pendency  at  the  commencement  of  the  action  is  sufficient.  Gamsby  v. 
Ray,  .52  N.  H.  513  (1872). 

16  The  cause  of  action  and  the  parties  must  be  averred  to  be  substantially 
identical  in  both  actions.  See  31  Cyc.  181,  note  41 ;  1  C.  J.  61,  75 ;  1  Ency. 
PI.  &  Pr.  757,  761.  The  former  action  must  also  be  shown  to  be  pending  in  the 
same  jurisdiction.  1  Ency.  PI.  &  Pr.  764;  31  Cve.  181.  note  la;  1  C.  J.  85, 
note,  98,  87,  note  22,  88,  notes  23  and  24;  42  L.  R.-A.  449;  26  L.  R.  A.  (N.  S.) 
969. 

17  It  cannot  be  shown  under  the  general  issue.  Smock  v.  Graham,  1  Blackf. 
(Ind.)  314  (1824) ;  Near  v.  Mitchell,  23  Mich.  382  (1871) ;  Percival  v.  Hickev, 
18  Johns.  (N.  Y.)  257,  290,  9  Am.  Dec.  210  (1820 :    one  groimd). 


610  PKINCIPLES   OP   GENERAL   APPLICATION  (Part  3 

PRUNTY  V.  MITCHELL. 

(Supreme  Court  of  Appeals  of  Virginia,  1882.  76  Va.  169.) 
Writ  of  error  to  judgment  of  circuit  court  of  Richmond  city,  in  as- 
sumpsit, by  Jesse  Prunty  v.  W.  T,  Mitchell  and  W.  W.  Cobbs,  part- 
ners trading  in  the  name  of  Mitchell  &  Cobbs,  and  sequel  to  the  case 
of  Prunty  v.  Mitchell  &  Cobbs,  reported  in  30  Grat.  247.  It  did  not 
appear  on  the  pleadings,  but  it  was  disclosed  by  the  evidence  that  W. 
A.  J.  Finney  was  a  joint  contractor  with  Mitchell  &  Cobbs  in  the  con- 
tract whereon  the  action  was  brought,  and,  on  motion  of  the  defend- 
ants, the  court  instructed  the  jury  to  find  for  the  defendants,  if  from 
the  evidence  they  believed  such  to  be  the  fact.  The  jury  so  found. 
PlaintiiT  excepted,  as  well  on  the  ground  of  misdirection  by  the  court 
as  of  its  refusal  to  set  aside  the  verdict  and  grant  him  a  new  trial. 

Andi;rson,  J.  This  is  an  action  of  assumpsit  by  the  plaintiff  in  er- 
ror, who  was  plaintiff  below,  against  Mitchell  &  Cobbs  on  an  account. 
Upon  the  trial  on  the  issue  of  non  assumpsit,  the  court,  upon  motion 
of  the  defendant,  instructed  the  jury  that,  if  they  believed  from  the 
evidence  that  the  contract  for  the  breach  of  which  the  plaintiff  sues 
was  made  with  a  partnership  firm  of  which  William  A.  J.  Finney  was 
a  member,  in  addition  to  the  two  defendants,  they  should  find  for  the 
defendants.  To  this  instruction  the  plaintiff  excepted,  and  it  raises 
the  question  upon  which  this  case  turns. 

When  a  person  who  ought  to  join  as  plaintiff  is  omitted,  if  the  ob- 
jection appears  upon  the  pleadings,  the  defendant  may  demur,  move 
in  arrest  of  judgment,  or  bring  a  writ  of  error.  If  it  does  not  appear 
upon  the  pleadings,  but  is  disclosed  by  the  evidence,  the  plaintiff  will 
be  nonsuited.^®     But  in  case  of  defendants,  if  a  party  be  omitted  who 

18  For  numerous  eases  accord,  see  15  Ency.  PI.  &  Pr.  566;  9  Cyc.  703;  30 
Cyc.  141 ;    1  C.  J.  125,  note  82. 

"A  distinction  lias  been  taken  between  actions  of  assumpsit  and  actions  of 
tort.  In  tbe  former  case,  if  one  only  of  several  persons  who  ought  to  join 
bring  the  action,  the  defendant  may  take  advantage  of  it  on  non  assumpsit, 
but  in  the  latter  he  must  plead  it  in  abatement.  Boson  v.  Sandford,  1  Show. 
105  [1691],  per  Holt,  C.  J. ;  Dockwray  v.  Dickenson,  Skin.  640  [1692] ;  Legise 
V.  Champante,  2  Str.  820  [1729] ;  Graham  v.  Robertson,  2  T.  R.  282  [1788]. 
[See,  for  many  cases  accord,  15  Ency.  PI.  &  Pr.  567;  30  Cyc.  143,  1  C.  J.  ,126. 
Ed.]  And  this  distinction  is  universally  adopted.  *.  *  *  But  as  soon  as 
it  was  decided  in  the  case  of  Rice  v.  Shute,  2  W.  Bl.  695  [1770],  and  the 
other  cases  which  followed  it,  that  leaving  out  one  of  the  joint  contractors  did 
not  vary  the  contract,  one  would  have  thought  that  the  same  principle  would 
be  applied  to  the  case  of  persons  with  whom  the' contract  was  made.  If  the 
contract  be  still  the  same,  notwithstanding  one  of  the  persons  who  ought  to 
be  joined  is  omitted,  upon  what  principle  is  it  that  the  contract  is  not  the 
same  if  one  of  the  persons  who  ought  to  join  be  omitted.  Perhaps  it  may  be 
objected  that  by  this  means  the  plaintitT  and  the  defendant  are  not  upon 
equal  terms;  that  in  an  action  against  one  only  he  necessarily  knows  all  the 
persons  liable ;  but  in  actions  by  one  only  the  defendant  may  often  not  know, 
nor  be  able  to  know,  what  persons  ought  to  join.  But  in  answer  to  this  it 
should  always  be  remembered  that  the  rule  is  founded  upon  the  supposed 
variance  between  the  contract  proved  and  the  contract  laid,  and  not  upon 
any  inconvenience  or  convenience  to  the  parties.     *     *     *     However,  the  set- 


Ch.  5)  DILATORY   OBJECTIONS  611 

is  liable  to  be  sued  jointly  with  the  defendants,  the  objection  can  be 
taken  only  by  plea  in  abatement,  verified  by  affidavit.  1  Chitty  on 
Pleading,  p.  53  (16th  A.  Ed.) 

Mr.  Robinson  says :  "Pleas  in  abatement  on  account  of  all  contract- 
ing parties  not  being  sued,  were  first  made  necessary  in  the  time  of 
Lord  Mansfield.  It  was  then  adjudged  (in  1770)  that  the  defendant 
must  say  in  his  plea  who  the  partners  are,  and  that,  if  he  does  not 
plead  the  matter  in  abatement,  the  objection  is  waived."  5  Rob.  Prac. 
p.  78.  He  cites  Rice  v.  Shute,  5  Burr.  2613 ;  2  Wm.  Bl.  695 ;  Abbott 
V.  Smith,  2  Wm.  Bl.  947;  Buller,  J., 'in  Reese  v.  Abbott,  Cowp.  832, 
and  Sheppard  v.  Baillie,  6  T.  R.  329. 

Prior  to  Rice  v.  Shute  it  appears  from  the  same  writer  that  the  de- 
fence of  "other  joint  contractors  not  sued"  would  avail  upon  non- 
assumpsit  if  the  defendant  showed,  in  an  action  on  a  sole  contract, 
that  he  had  promised  jointly  with  another,  his  issue  was  regarded  as 
proved.  If  that  doctrine  prevailed  now,  the  instructions  given  by  the 
court  in  this  case  could  be  maintained.  The  cases  which  held  that 
doctrine,  it  seems,  were  decided  after  the  action  of  assumpsit  was  sub- 
stituted for  the  action  of  debt  in  cases  of  simple  contract,  and  before 
the  plea  in  abatement  had  been  introduced  for  that  form  of  action. 
For  De  Gray,  C.  J.,  says :  "Proof  that  another  also  contracted  does 
not  prove  that  I  did  not  contract."  And,  he  observes,  this  doctrine  is 
as  old  as  the  year  books. ^^     And  most  of  the  cases  to  which  he  refers, 

tied  distinction  is,  as  I  have  before  mentioned,  and  it  must  be  left  to  the 
operation  of  time  and  the  same  good  sense  as  at  last  prevailed  in  Rice  v. 
Shute  respecting  defendants,  to  do  away  a  distinction  which  seems  to  me  to 
have  no  principle  for  its  foundation."     1  Wms.  Saunders,  291  i,  note  4. 

"It  is  suggested  by  Mr.  Sargeant  Williams  (1  Saund.  291  f,  g,  note  4)  that 
since  the  nonjoinder  of  one  of  two  joint  promisors  as  defendants  is  held  to 
be  only  matter  of  abatement  the  rule  ought  for  the  sake  of  consistency  to  be 
the  same  as  to  joint  promisees ;  i.  e.,  that  the  nonjoinder  of  one  of  two  joint 
promisees  as  plaintiff  should  be  pleadable  in  abatement  only.  But,  with  sub- 
mission, are  not  the  two  cases  essentially  different?  If  A.  and  B.  make  a  joint 
promise,  it  is  nevertheless  true  that  each  of  them  promises ;  and,  if  so,  it  fol- 
lows that  a  declaration  on  the  promise  against  A.  alone,  alleging  that  he 
promised,  is  not  disproved  by  the  admission  that  B.  promised  jointly  with 
him.  But  if  a  promise  is  made  to  A.  and  B.  jointly  it  would  seem  not  correct 
to  say  that  there  is  a  promise  to  each  of  them ;  and  therefore  a  declaration  bj^ 
A.  alone,  alleging  the  promise  to  have  been  made  to  him,  without  naming  B. 
as  a  copromisee,  is  falsified  by  proof  that  the  promise  was  made  to  both  of 
them  jointly.  In  other  woi-ds,  there  is  a  variance  between  the  declaration  and 
the  proof.  Such,  at  any  rate,  is  the  principle  of  the  distinction  recognized 
by  the  authorities — a  distinction  which,  it  is  believed,  is  not,  'without  a  difl'er- 
ence.'  "     Gould,  Pleading  (Hamilton's  Ed.)  270,  note  184. 

19  "Generally  speaking,  all  joint  obligors  or  contractors  ought  to  be  made 
defendants,  and  the  plaintiff  may  be  compelled  to  join  them  all,  if  advantage 
be  taken  of  the  omission  in  due  time,  and  by  a  proper  plea.  In  this  restrictive 
sense  is  to  be  understood  the  nde,  which  is  laid  down  in  general  terms,  that 
the  plaintiff  must,  join  all  the  parties  as  defendants.  For  it  seems  to  be  now 
settled  that  in  all  cases  of  joint  obligation  or  deed,  or  a  joint  contract,  in  writ- 
ing or  by  parol,  or  ex  quasi  contractu,  if  one  only  be  sued,  he  nuist  plead  the 
matter  in  abatement,  and  cannot  take  advantage  of  it  afterwax-ds  upon  any 
other  plea,  or  in  arrest  of  judgment,  or  give  it  in  evidence.     *     *     *     In  the 


012  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

Sir  James  Mansfield  remarks,  are  cases  of  debt  on  simple  contract, 
which  was  the  usual  mode  of  declaring  previous  to  Slade's  Case. 
Cited  3  Rob.  Prac.  c.  7Z,  §  1,  p.  389. 

But  since  Rice  v.  Shute  and  Abbott  v.  Smith  defendants  can  avail 
themselves  of  the  objection  only  by  plea  in  abatement.^"  Lord  Ellen- 
borough,  C.  J.,  referring  to  these  cases  in  43  Geo.  3  (1802),  said: 
"That  since  these  cases  nobody  can  entertain  a  doubt  that  the  objection 
was  available  not  only  by  plea  in  abatement,  but  that  it  was  available 
in  that  way  only,  and  cannot  be  taken  advantage  of  on  the  general 
issue."  Mr.  Robinson  cites  numerous  cases,  English  and  American,, 
in  support  of  this  doctrine. 

And  in  his  old  book  on  practice,  volume  1,  p.  163,  he  says,  when 
one  partner  is  sued  alone  upon  a  partnership  transaction,  the  defend- 
ant can  only  take  advantage  of  it  by  pleading  in  abatement  and  point- 
ing out  the  other  partners.  His  failure  to  plead  in  abatement  is  a 
waiver  of  the  objection.  He  cannot,  after  pleading  to  issue,  give  evi- 
dence at  the  trial  that  there  was  another  partner  not  joined  in  the  ac- 
tion. And  this  rule  holds,  although  it  should  appear  by  the  evidence 
that  the  plaintiff  knew  of  the  partnership ;  and  he  is  fortified  by  the 
decisions  of  this  court  and  by  other  states  to  which  he  refers. 

It  is  clear,  then,  that  the  instruction  is  wrong,  and  that  the  verdict 
of  the  jury,  which  was  in  pursuance  to  it,  is  also  erroneous.  The 
court,  is  of  opinion,  therefore,  to  reverse  the  judgment  of  the  circuit 
court,  to  set  aside  the  verdict  and  grant  the  plaintiff  a  new  trial,  and 
to  remand  the  cause  for  further  proceedings  to  be  had  thereon  in  con- 
formity with  this  opinion. 

Judgment  reversed. 


GERRY  et  ux.  v.  GERRY. 

(Supreme  Judicial  Court  of  Massachusetts,  1S58.    11  Gray,  381.) 

Action  of  tort  for  the  conversion  of  a  watch  and  chain.  At  the 
trial  in  the  court  of  common  pleas,  it  appeared  that  the  watch  and 
chain  had  been  purchased  in  1853  by  the  female  plaintiff  during  cover- 
ture, with  money  earned  by  her.  The  defendant  objected  that  upon 
this  evidence  the  action  should  have  been  brought  in  the  name  of  the 
husband  only;  but  Sanger,  J.,  for  the  purposes. of  the  trial,  overruled 
the  objection;  a  verdict  was  returned  for  the  plaintiffs,  and  the  de- 
fendant alleged  exceptions. 

MktcalF,  J.  This  case  is  not  affected  by  either  of  the  recent  stat- 
utes of  the  commonwealth  concerning  married  women,  but  is  to  be  de- 
case  of  joint  bonds  and  deeds,  the  rule  seems  to  have  been  uniform  from  the 
2Sth  H.  6  3.  a.  down  to  the  present  time."     I  Wms.  Saunders,  291  b,  c,  note  4. 

2  0  "It  would  be  an  affectation  of  learning  to  cite  authorities  for  this  proposi- 
tion." Sharswood,  J.,  in  Collins  v.  Smith,  7S  Pa.  423,  425  (1S7.1).  See  15  Ency 
PI.  &  Pr.  572-575 ;    31  Cyc.  691,  note  45 ;    14  Cyc.  439;    9  Cyc.  706 


Ch.  5)  DILATORY   OBJECTIONS  613 

cided  by  the  rules  of  the  common  law.  By  that  law,  the  watch  and 
chain,  which  are  the  subjects  of  this  suit,  were  the  sole  property  of 
the  husband.  No  authority  need  be  cited  to  this  point.  It  follows 
that  the  wife  has  wrongly  joined  as  plaintiff.  And  the  misjoinder 
of  plaintiffs  is  fatal,  both  in  actions  of  tort  and  in  actions  of  contract.-' 
When  the  misjoinder  appears  on  the  declaration,  it  is  fatal  on  demur- 
rer; and  before  our  practice  act  (section  22)  took  effect,  it  would  have 
been  fatal  on  motion  in  arrest  of  judgment.  When  it  appears  only  in 
evidence  at  the  trial,  it  is  ground  of  nonsuit,  or  requires  a  verdict  for 
the  defendant.  Archb.  PI.  54;  Browne  on  Actions,  307;  Glover  v. 
Hunnewell,  6  Pick.  224;  Ulmer  v.  Cunningham,  2  Greenl.  (Me.)  117. 
These  rules  of  law  are  applied  as  well  to  husbands  and  wives  as  to 
other  misjoined  plaintiffs.  Archb.  PI.  39;  Broom  on  Parties,  229,  230; 
Moores  v.  Carter,  Hempst.  64,  Fed.  Cas.  No.  9,782a;  Van  Arsdale  v. 
Dixon,  Labor's  Supp.  (Hill  &  Denio)  (N.  Y.)  358 ;  RawHns  v.  Rounds, 
27  Vt.  17. 

In  actions  of  tort,  there  is  a  distinction  between  nonjoinder  and  mis- 
joinder of  plaintiffs.  Nonjoinder  is  matter  of  abatement  only. 
Thompson  v.  Hoskins,  11  Mass.  419;  Phillips  v.  Cummings,  11  Cush. 
469. 

The  verdict  must  be  set  aside,  and  a  new  trial  granted.  But  a  new 
trial  will  be  of  no  avail,  unless  the  declaration  is  so  amended  as  to 
make  the  husband  sole  plaintiff. 

Exceptions  sustained. ^- 


WALCdTT  V.  CANFIELD. 

(Supreme  Court  of  Errors  of  Connecticut,  1819.     3  Conn.  194.) 

Action  on  the  case  by  plaintiff  against  six  defendants.  Plea,  not 
guilty.    The  trial  court  directed  a  verdict  for  all  the  defendants.-^ 

HosMER,  C.  J.  The  declaration  alleges  that  the  defendants  were 
proprietors  of  a  line  of  stages  from  Hartford  to  Albany,  and  that,  in 
consideration  of  six  dollars  and  fifty  cents,  they  undertook  to  trans- 
port the  plaintiff  and  his  baggage  from  the  former  to  the  latter  place, 
in  a  certain  specified  time.  This  engagement  they  did  not  perform ; 
and  for  the  damage  arising  from  nonperformance,  this  action  is 
brought.     *     *     * 

Against  five  of  the  defendants  there  was  no  evidence ;  and  of  conse- 
quence they  were  entitled  to  a  verdict.  This  notwithstanding,  the 
plaintiff  claimed  a  right  to  a  verdict  against  Canfield,  on  his  separate 

21  That  misjoinder  of  plaintiffs  in  actions  on  contract  at  common  law  is 
fatal  and  need  not  l>e  taken  advantage  of  bv  plea" in  abatement,  see  15  Ency. 
PI.  &  Tr.  580,  581 ;    31  Cyc.  691  ;    14  Cye.  438. 

2  2  For  cases  accord,  see  15  Ency.  PI.  &  Pr.  581,  582;  30  Cyc.  142;  14  Cvc. 
438. 

2  3  This  short  statement  is  substituted  for  that  printed  in  the  official  report. 
A  portion  of  the  opinion  is  omitted. 


614  PRINCIPLES   OP   GENERAL  APPLICATION  (Part  3 

contract;  and  the  overruling  of  this  claim  constitutes  the  remaining 
objection  in  the  case. 

It  is  too  manifest  to  require  authority  that  an  action  founded  on 
contract,  against  several  defendants,  cannot  be  sustained,  by  the  proof 
of  an  agreement  made  by  one  of  them,  or  by  any  number,  not  includ- 
ing all  the  persons  sued.^^  1  Chitt.  Plead.  31 ;  Livingston's  Ex'rs  v. 
Tremper,  11  Johns.  (N.  Y.)  101.  The  distinction  between  tort  and 
contract,  in  this  respect,  is  obvious  and  familiar.  Now,  the  plaintiff's 
action  was  founded  on  contract,  and  the  nonperformance  of  it,  with- 
out the  allegation  of  malfeasance  or  misfeasance.  The  cases  cited 
have  no  bearing  on  the  question  between  the  parties. 

There  has  been  a  difference  of  opinion  on  the  question,  where  the 
action  is  brought  on  contract,  and  the  gravamen  has  been  laid  on  tor- 
tious negligence,  or  breach  of  duty,  by  wrong  done,  whether  a  re- 
covery can  be  sustained  against  a  part  of  the  defendants  only.  In 
Govett  v.  Radnidge,  3  East,  62,  it  was  adjudged  that  it  might  be  done. 
This  doctrine,  however,  has  not  the  support  of  principle;  and  the 
above  case  has  been  considered  as  of  no  authority.  Powell  v.  Layton, 
2  New  Rep.  364;  Max  v.  Roberts  et  al,  2  New  Rep.  454.  The  same 
court  which  determined  the  case  of  Govett  v.  Radnidge,  in  the  recent 
determination  of  Weall  v.  King  et  al.,  12  East,  452,  have  virtually 
overruled  their  former  decision.  This  was  an  action  against  several 
defendants,  alleging  a  deceit  to  have  been  effected,  by  means  of  a  war- 
ranty, made  on  a  joint  sale,  in  which  it  was  adjudged  that  the  plain- 
tiff could  not  recover  upon  proof  of  a  contract  by  one,  as  of  his  sep- 
arate property;  the  action,  though  laid  in  tort,  being  founded  on  the 
joint  contract  alleged.  It  was  said  by  Lord  EHenborough :  "The  ar- 
gument on  the  part  of  the  defendant  has  been  that  this  is  an  action 
founded  on  the  tort;  that  torts  are,  in  their  nature,  several;  and  that 
in  actions  of  tort  one  defendant  may  be  acquitted,  arid  others  found 
guilty.  This  is  unquestionably  true,-^  but  .still  is  not  sufficient  to  de- 
cide the  present  question.  The  declaration  alleges  the  deceit  to  have 
been  effected,  by  means  of  a  warranty,  made  by  both  the  defendants, 
in  the  course  of  a  joint  sale,  etc.  The  joint  contract  thus  described  is 
the  foundation  of  the  joint  warranty  laid  in  the  declaration,  and  es- 
sential to  its  legal  existence  and  validity ;  and  it  is  a  rule  of  law  that 
the  proof  of  the  contract  must  correspond  with  the  description  of  it, 
in  all  material  respects,  etc.  Such  allegation  requires  proof  strictly 
corresponding  therewith ;  it  is,  in  its  nature,  entire  and  indivisible,  and 
must  be  proved  as  laid  in  all  material  respects." 

The  principle  is  this:  That  in  actions  founded  on  agreement,  the 
plaintiff",  in  every  essential  particular,  must  prove  the  contract  as  he 
alleged  it;  and  it  matters  not  whether  the  breach  of  contract  resulted 
from  the  omission  to  perform  some  act  which  the  defendants  ought  to 

2  4  For  cases  accord,  see  15  Ency.  PI.  »&  Pr.  582;    14  Cyc.  4.38:   9  Cyc.  707. 
2  5  For  cases  accord,  see  15  Ency.  PI.  &  Pr.  583;   30  Cyc.  143;    14  Cyc.  438. 


Ch.  5)  DILATORY   OBJECTIONS  615 

perform,  or  from  the  improper  performance  of  the  act,  or  from  the 
doing  what  ought  not  to  have  been  done. 

The  other  Judges  were  of  the  same  opinion. 

New  trial  not  to  be  g-ranted.^^ 


THOMAS  V.  WINTERS. 
(Supreme  Court  of  Indiana,  1S36.     4  Blackf.  161.) 

Error  to  the  Vigo  Circuit  Court. 

Dewky,  J.  Thomas  sued  Winters  before  a  justice  of  the  peace  on 
a  book  account,  and  recovered  judgment  against  him  by  default. 
Winters  appealed  to  the  Circuit  Court. 

In  that  court,  on  the  trial  of  the  cause,  Thomas  proved  by  the  ad- 
mission of  Winters  that  the  account  was  correct  and  justly  due  to  him. 
Winters  proved  that  the  summons  issued  by  the  justice  was  served 
upon  him  out  of  the  township  in  which  it  was  issued  ;  that  he,  Winters, 
resided  in  the  township  where  it  was  served,  and  where  the  debt  was 
contracted;  and  that  there  was  an  acting  and  competent  justice  of 
the  peace  in  that  township  at  the  time.  To  the  admission  of  this  proof 
Thomas  objected;  but  the  Circuit  Court  heard  and  considered  it,  and 
dismissed  that  cause  for  want  of  jurisdiction.  There  was  no  plea 
put  in  by  Winters ;  but  he  was  entitled  to  the  benefit  of  the  general 
issue  without  pleading  it.     Rev.  Laws  1831,  p.  301. 

The  only  question  presented  by  this  record  is.  Was  the  above  evi- 
dence on  the  part  of  the  defendant  legally  admitted  under  the  gen- 
eral issue?  There  can  be  no  doubt  that,  had  the  facts  disclosed  in 
evidence  been  pleaded  before  that  justice  and  proved,  they  would  have 
divested  him  of  jurisdiction  of  the  cause.  Rev.  Laws  1831,  p.  299. 
If  legally  admitted  in  evidence  by  the  Circuit  Court,  under  the  gen- 
eral issue,  they  produced  the  proper  result. 

It  is  generally  true,  that  in  suits  in  courts  of  general  jurisdiction, 
if  an  objection  to  the  jurisdiction  exist,  which  does  not  appear  upon 
the  record,  it  can  only  be  adduced  in  the  form  of  a  dilatory  plea,  and 
is  lost  to  the  party  wishing  to  use  it,  if  he  plead  to  the  merits.-^  But 
this  rule,  even  in  such  courts,  is  not  without  exceptions.  If  the  ac- 
tion be  local,  or  the  remedy  be  confined  to  another  court  by  an  act  of 
legislation,  the  plaintiff  will  be  nonsuit  by  a  disclosure  of  the  facts 

2  6  The  common-law  rules  of  pleading  as  to  misjoinder  and  nonjoinder  of 
parties  have  been  largely  changed  hy  statute. 

-7  This  is  the  universal  i-ule  where  the  court  has  jurisdiction  of  the  subject- 
matter.  12  Eucy.  PI.  &  Pr.  191-193,  and  cases  cited;  1  C.  J.  42,  note  Gl.  If 
the  lack  of  jurisdiction  appears  on  the  face  of  the  plaintiff's  pleadings,  u  de- 
murrer will  lie.     1  C.  J.  40,  note  43 ;    12  Ency.  PI.  &  Pr.  184. 

Whit.C.L.Pl. — 40 


G16  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

showing  want  of  jurisdiction  under  the  general  issue.'^  Bac.  Abr. 
Pleas,  E,  1 ;  Taylor  v.  Blair,  3  Term  Rep.,  453 ;  Doulson  v.  Matthews, 
4  Term  Rep.,  503 ;  Parker  v.  Elding,  1  East,  352 ;  1  Saund.  Plead. 
1 ;    Rex   V.  Johnson,  6  East,  583. 

In  inferior  courts  the  rule  is  different.  In  them  want  of  jurisdic- 
tion can  be  taken  advantage  of  without  pleading  it.  It  may  be  dis- 
closed in  evidence  under  the  general  issue,  and  when  disclosed  will 
be  fatal  to  the  claim  of  a  plaintiff.  Bac.  Abr.  Pleas,  E,  1 ;  1  Chitt. 
PI.  425,  n.  b;   Id.  428;   Bac.  Abr.  Courts,  D,  4;    1  Saund.  PI.  1. 

By  our  statute  no  person  is  "bound  to  answer  any  summons,  capias, 
or  other  process  issued  by  a  justice,  in  civil  cases,  in  any  other  town- 
ship than  the  one  in  which  he  actually  resides,  or  where  the  debt  was 
contracted,  or  the  cause  of  action  accrued,  or  where  the  defendant 
may  be  found,  unless  there  shall  be  no  justice  who  can  legally  issue 
such  summons,  capias,  or  other  process."  The  evidence  contained  in 
the  record  shows  that  the  defendant.  Winters,  did  not  live  in  the  town- 
ship where  the  process  issued,  that  the  debt  was  not  contracted,  nor 
he  found  there ;  and  it  shows  that  there  was  an  acting  and  competent 
justice  of  the  peace  in  the  township  in  which  he  did  live,  and  in  which 
the  process  was  served.  The  justice  who  tried  the  cause,  therefore, 
clearly  had  no  jurisdiction  over  it ;  and  as  he  possessed  an  inferior  and 
limited  jurisdiction  only,  the  Circuit  Court  acted  correctly  in  hearing 
the  evidence  and  dismissing  the  action. 

Pe;r  Curiam.  The  judgment  is  affirmed  with  costs.  To  be  certi- 
fied, etc. 


SECTION  3.— DILATORY  PLEAS 


PITTS   SONS'  MANUFACTURING  COMPANY  v.  COMMER- 
CIAL NATIONAL  BANK. 
(Supreme  Court  of  Illinois,  18S7.     121  111.  582,  13  N.  E.  156.) 

Action  on  promissory  notes.  Plea,  that  plaintiff  and  other  creditors 
had  agreed  to  an  extension  of  the  time  of  payrnent  and  not  to  sue  on 
the  notes  until  the  extension  had  expired.  A  demurrer  to  the  plea  was 
sustained.  The  defendant  stood  by  its  plea,  and  final  judgment  was 
rendered,  which  the  Appellate  Court  for  the  Second  District  affirmed. 
The  record  is  brought  here  by  writ  of  error  to  that  court. -^ 

ShopE,  J.     The  common-law  system  of  pleading  has  prevailed  in 

2  8  That  lack  of  jurisdiction  of  the  subject-matter  may  be  taken  advantage 
of  at  any  stage  of  the  proceedings,  see  12  Ency.  PI.  &  Pr.  188-190 ;  11  Cyc. 
699,  and  cases  cited ;    1  C.  J.  36,  notes  20-25. 

2  9  The  statement  of  the  case  is  abbreviated  and  a  portion  of  the  opinion  is 
omitted. 


Ch.  5)  DILATORY   OBJECTIONS  617 

this  state,  and  from  time  to  time  such  modifications  have  been  made 
by  statute  as  seemed  to  be  required,  removing  arbitrary  and  artificial 
distinctions,  and  by  the  allowance  of  amendments  at  any  and  every 
stage  of  proceeding,  and  to  every  reasonable  extent,  doing  away  with 
its  purely  technical  and  objectionable  features.  As  a  system  of  plead- 
ing, and  as  existing  in  this  state,  it  is  clearly  defined,  easily  understood, 
and  certain,  \^'ith  the  general,  logical  arrangement  of  the  system  as 
at  common  law  there  has  been  no  interference  by  statute.  The  order 
of  pleading,  and  the  structure  and  office  of  pleas  of  different  char- 
acter, remain  substantially  unchanged.  Without  entering  into  an  ex- 
tended discussion,  a  statement  of  some  of  the  principles  of  pleading 
seems  necessary. 

Pleas  are  divided  into  two  general  classes,  viz.,  dilatory  and  per- 
emptory ;  otherwise  designated  as  pleas  in  abatement  and  pleas  in  bar. 
A  plea  in  abatement  is  defined  to  be  a  plea  that,  without  disputing  the 
justness  of  the  plaintiff's  claim,  objects  to  the  place,  mode,  or  time 
of  asserting  it,  and  requires  that  therefore,  and  pro  hac  vice,  judgment 
be  given  for  the  defendant,  leaving  it  open  to  renev/  the  suit  in  another 
place  or  form,  or  at  another  time ;  while  to  the  second  class  belong  all 
those  pleas  having  for  their  object  the  defeatiiig  of  the  plaintiff's 
claim.  Hence  a  plea  in  bar  of  the  action  may  be  defined  as  one  which 
shows  some  ground  for  barring  or  defeating  the  action,  and  makes 
prayer  to  that  effect.  Pleas  in  bar  and  pleas  in  abatement  have  there- 
fore this  marked  distinction :  pleas  in  bar  are  addressed  to  the  merits 
of  the  claim,  and  as  impairing  the  right  of  action  altogether ;  whereas 
pleas  in  abatement  tend  merely  to  divert,  suspend,  or  defeat  the  pres- 
ent suit.  1  Saund.  PI.  &  Ev.  1,  2;  Com.  Dig',  tit.  "Abatement";  1 
Chit.  PI.  441. 

Owing  to  the  nature  and  effect  of  pleas  in  abatement,  they  are  re- 
quired to  be  certain  to  every  intent.  Com.  Dig.  tit.  "Abatement,"  111. 
Whenever  the  subject-matter  to  be  pleaded  is  to  the  effect  that  the 
plaintiff  cannot  maintain  any  action  at  any  time,  it  must  be  pleaded 
in  bar ;  while  matter  which  merely  defeats  the  present  proceeding, 
and  does  not  show  that  the  plaintiff  is  forever  concluded,  should  be 
pleaded  in  abatement.     1  Chit.  PI.  445. 

Whether  a  plea  is  in  abatement  or  in  bar  i^  to  be  determined,  not 
from  the  subject-matter  of  the  plea,  but  from_  its  conclusion.  The 
advantage  or  relief  sought  by  the  plea — the  prayer  of  the  plea — deter- 
mines its  character.  Jenkins  v.  Pepoon,  2  Johns.  Cas.  (N.  Y.)  312; 
Tidd,  Pr.  637.  It  would  be  both  illogical  and  absurd,  in  a  plea  in  bar, 
to  pray,  as  in  a  plea  in  abatement  to  the  count  or  declaration,  "judg- 
ment of  the  said  writ  and  declaration,  and  that  the  same  may  be 
quashed" ;  and  as  only  the  relief  asked  can  be  awarded,  a  mistake  in 
this  regard  is  fatal  to  the  plea.  And  hence  the  rule  that  a  plea  be- 
ginning in  bar,  and  ending  in  abatement,  is  in  abatement ;  and  though 
beginning  in  abatement,  and  ending  in  bar,  is  in  bar ;  so,  a  plea  begin- 


618  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

ning  and  ending  in  abatement  is  in  abatement,  tbough  its  subject-matter 
be  in  bar ;  and  a  plea  beginning  and  ending  in  bar  is  in  bar,  though  its 
subject-matter  is  in  abatement.  Com.  Dig.  tit.  "Abatement,"  B  2. 
With  respect  to  all  dilatory  pleas,  the  rule  requiring  them  to  be  framed 
with  the  utmost  strictness  and  exactness  is  founded  in  wisdom.  It 
says  to  the  defendant:  "If  you  will  not  address  yourself  to  the  just- 
ness and  merits  of  the  plaintiff's  demand,  and  appeal  to  the  forms  of 
law,  you  shall  be  judged  by  the  strict  letter  of  the  law."  And  so  it 
has  been  held  that  a  plea  in  abatement  concluding,  "Wherefore  he 
prays  judgment  if  the  said  plaintiff  ought  to  have  or  maintain  his 
aforesaid  action  against  him,"  etc.  (a  conclusion  in  bar),  is  bad.  Jen- 
kins V.  Pepoon,  2  Johns.  Cas.  (N.  Y.)  312;  Ilsley  v.  Stubbs,  5  Mass. 
280. 

An  inspection  of  the  plea  in  question  shows  that  in  form  and  struc- 
ture, in  its  beginning  and  conclusion,  it  is  a  plea  in  bar  to  the  count 
and  declaration ;  and,  upon  application  of  the  principles  announced,  it 
must  be  held  to  be  a  plea  in  bar.  Its  subject-matter,  however,  is  in 
abatement,  and  clearly  falls  within  the  definition  of  matter  pleadable 
in  abatement.  The  justness  of  the  plaintiff's  demand,  that  the  de- 
fendant owes  the  debt  evidenced  by  the  notes,  and  sued  on,  is  not 
denied,  but  the  defendant  denies  that  the  debt  is  due.  He  objects, 
then,  simply  as  to  the  time  the  debt  shall  be  asserted  against  him.  The 
contract  set  out  in  the  plea  is  of  an  extension  of  the  time  of  payment ; 
and  such  a  contract,  this  court  has  repeatedly  held,  cannot  be  pleaded 
in  bar  of  an  action  brought  before  the  time  has  expired.  Guard  v. 
Whiteside,  13  111.  7 ;  Hill  v.  Enders,  19  111.  163 ;  Payne  v.  Weible,  30 
111.  166;  Archibald  v.  Argall,  53  111.  307;  Culver  v.  Johnson,  90 
111.  91.^<^ 

3  0  "In  view  of  the  authorities  above  quoted,  we  are  inclined  to  thinli  that 
the  defense  of  nouniaturit.'S'  of  the  debt  sued  upon  can  be  made  under  the  plea 
of  the  general  issue.  Certain  cases  decided  by  this  court  are  referred  to  by 
counsel  for  the  appellants  as  holding  a  contrary  doctrine.  Among  these  are 
*  *  *  Pitts  Sons'  Manf.  Co.  v.  Commercial  Nat.  Bank,  121  111,  582  [13  N. 
E.  156  (1887)].  But  in  all  of  these  cases  except  Palmer  v.  Gardiner  [77  111.  143 
(1875)],  supra,  the  facts  show  that  the  actions  therein  were  prematurely 
brought,  not  because  the  original  debt  had  not  matured,  but  because  there  was 
an  agreement  to  extend  the  time  of  payment  which  had  not  elapsed  at  the 
time  of  the  bringing  of  the  suit.  An  agreement  based  upon  a  valid  considera- 
tion, to  extend  the  time  of  payment  of  the  debt  to  a  date  beyond  the  time  when 
the  suit  is  brought,  cannot  be  pleaded  in  bar  of  the  action,  but  only  in  abate- 
ment, and  cannot  therefore  be  shown  under  the  general  issue."  Magruder, 
J.,  in  Bacon  v.  Schepflin,  185  111.  122,  5G  N.  B.  1123  (1900).  That  there  is 
some  conflict  on  the  right  to  show  prematurity  of  suit  under  the  general  is- 
sue, see  31  Cyc.  170,  notes  25-31 ;  16  Ency.  PI.  &  Pr.  876-880 ;  1  Ency.  L.  & 
P.  17. 

"That  the  action  is  misconceived  is  pleadable  in  abatement,  as  if  assumpsit 
is  brought  when  account  is  the  only  proper  remedy ;  or  trespass  when  case  is 
the  proper  action.  But  a  plea  in  abatement  for  this  cause  is  unnecessary  and 
unusual.  For  if  the  mistake  appears  upon  the  face  of  the  declaration  it  is 
fatal  on  demurrer ;  and  if  not  advantage  may  be  taken  of  it  under  the  general 
issue. 

"Tliat  the  right  of  action  had  not  accrued  at  the  commencement  of  the 


Ch.  5)  •  DILATORY   OBJECTIONS  619 

The  circuit  court  did  not  err  in  sustaining  the  demurrer  to  the  plea, 
and,  when  the  defendant  elected  to  stand  by  its  plea,  final  judgment 
was  properly  rendered  against  it;  for  the  rule  is,  if  matter  in  abate- 
ment be  pleaded  in  bar  of  the  action,  final  judgment  shall  be  against 
the  defendant,  if  the  plea  be  disallowed.  Com.  Dig.  tit.  "Abate- 
ment," I  15.  [The  court  then  held  that  the  plea  did  not  set  up  a 
composition  agreement  with  creditors.] 

The  judgment  of  the  appellate  court  is  affirmed. 

Judgment  affirmed. 


GOODHUE  V.  LUCE. 

(Supreme  Judicial  Court  of  Maine,  1SS9.     82  Me.  222,  19  Atl.  440.) 

On  exceptions. 

This  was  an  action  of  assumpsit,  brought  in  the  superior  court  for 
Aroostook  county,  against  the  defendant  Luce  alone.  The  defendant 
seasonably  filed  the  following  plea  in  abatement  to  which  the  plain- 
tiff demurred : 

And  now  on  the  second  day  of  said  term  the  said  George  M.  Luce 
comes  and  defends,  etc.,  when,  etc.,  and  prays  judgment  of  the  writ 
and  declaration  aforesaid,  because  he  says  that  the  several  supposed 
promises  in  said  writ  declared  upon,  if  any  such  were  made,  were 
made  jointly  with  one  George  F.  Whitney,  who  is  still  living  and  re- 
siding at  Presque  Isle,  in  said  county,  and  who  likewise  was  residing 
at  said  Presque  Isle  at  the  date  of  said  writ,  and  not  by  the  said  George  • 
M.  Luce  alone,  and  this  he  is  ready  to  verify ;  wherefore  because  said 
George  F.  Whitney  is  not  named  in  said  writ  and  declaration  together 
with  said  George  M.  Luce,  he  the  said  George  M.  Luce  prays  judg- 
ment of  the  said  writ  and  that  the  same  may  be  quashed. 

George  M.  Luce, 
By  his  Attorney,  George  H.  Smith. 

State  of  Maine. 
Aroostook,  ss.  November  7th,  1888. 

Personally  appeared  Geo.  H.  Smith,  attorney  for  the  before-named 
George  M.  Luce,  and  made  oath  that  the  foregoing  plea  is  true  in  sub- 
stance and  in  fact. 

Before  me,  Charles  F.  Weed,  Justice  of  the  Peace. 

The  presiding  justice  sustained  the  demurrer  to  the  plea  in  abate- 
ment and  the  defendant  excepted. 

Fosti;r,  J.    This  is  an  action  of  assumpsit^  to  which  the  defendant 

suit  may  be  pleaded  in  abatement,  as  when  an  action  on  contract  is  com- 
menced before  the  time  appointed  for  performance.  This  plea  also  is  seldom 
used,  and  for  the  same  reason  as  is  mentioned  under  the  last  head."  Gould, 
Pleading  (Hamilton's  Ed.)  278.  279.  See,  also,  Bacon  v.  Sohepflin.  1S5  111.  122, 
56  N.  E.  1123  (19(M));  Warfleld  v.  Walter,  11  Gill  &  J.  (Md.)  80  (1839);  Woods 
V.  Nashua,  etc.,  Co.,  4  N.  H.  527  (1829). 


620  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

pleads  the  nonjoinder  of  a  joint  contractor  in  abatement.  To  this 
plea  the  plaintiff  has  demurred.  The  court  sustained  the  demurrer, 
and  adjudged  the  plea  bad,  to  which  rulings  exceptions  were  filed. 
The  question  thus  raised  relates  to  the  sufficiency  of  the  defendant's 
plea. 

It  is  elementary  learning  that  pleas  in  abatement  have  always  been 
regarded  with  disfavor,  since  they  are  dilatory  in  their  nature,  and 
seek  to  defeat  the  particular  action  upon  technical  grounds,  instead  of 
allowing  the  case  to  proceed  to  a  decision  upon  its  real  merits.  The 
rule  in  relation  to  the  degree  of  certainty  required,  both  as  to  the  form 
and  substance  of  such  pleas,  requires  the  utmost  fullness  and  particu- 
larity of  statement,  as  well  as  the  highest  attainable  accuracy  and  pre- 
cision, leaving  nothing  to  be  supplied  by  intendment  or  construction,^^ 
and  no  supposable  special  answer  to  the  same  unobviated.^^  Co.  Litt. 
.352-356;  Burgess  v.  Abbott,  1  Hill  (N.  Y.)  477;  Furbish  v.  Robertson, 
67  Me.  35. 

Yet,  while  such  accuracy  and  precision  are  required,  the  law  recog- 
nizes the  use  of  these  pleas,  and,  when  possessing  all  the  requisites 
which  the  law  demands,  there  is  no  reason  why  they  may  not  be 
properly  invoked. 

Judged  by  the  most  formal  rules  of  pleading,  the  plea  in  this  case 
possesses  every  requisite  essential  in  a  plea  of  abatement  for  non- 
joinder of  a  joint  contracting  party.  It  is  drawn  with  accuracy  and 
skill.  The  pleader  has  followed  the  precedents  laid  down  in  Steph. 
PL  87 ;  Story,  Eq.  PI.  99 ;  3  Chit.  PI.  *900.  This  precedent  has  stood 
the  test  for  many  years  in  the  English  and  American  courts,  and  been 
cited  with  approval  by  the  best  text-writers.  2  Greenl.  Ev.  §  24,  note. 
Nor  has  our  attention  been  called  to  any  authority  in  which  it  has  been 
held  insufficient.  ' 

Non-joinder  of  another  joint  contracting  party  defendant  is  the 
issue  presented  by  this  plea,  and  in  it  are  found  the  necessary  allega- 
tions. It  was  the  duty  of  the  defendant,  by  his  plea,  to  furnish  the 
plaintiff  such  information  as  might  enable  him  to  correct  the' defect  in 
his  writ.^^  This  has  been  done.  The  joint  party  is  named.  He  is  al- 
leged to  be  living,  and  his  residence  within  the  state  at  the  date  of  the 
plaintiff's  writ.     Furbish  v.  Robertson,  67  Me.  35 ;  Harwood  v.  Rob- 

31  For  unmerous  cases  recosnizing  and  applying  this  rule,  see  1  Ency.  L.  & 
P.  36,  note  15 ;    31  Cyc.  179,  notes  11,  12,  15,  IG. 

32  See  accord  cases  cited  in  1  Ency.  L.  &  P.  41,  notes  11,  12;  31  Cyc.  179, 
notes  13,  14. 

33  "There  are  many  cases  where  a  plea  in  abatement  need  not  furnish  the 
plaintiff  with  a  better  writ ;  as  a  plea  that  no  such  person  exists  as  the  plain- 
tiff, a  plea  of  nontenure,  or  plea  of  disclaimer,  and  the  like.  No  authorities 
have  been  cited  by  the  defendant  to  establish  the  position  that,  when  the  ob- 
jection is  really  one  of  form  and  the  defendant  is  bound  to  give  a  better 
writ,  he  is  not  retjiiired  to  point  out  the  error  and  furnish  the  means  of  avoid- 
ing it  in  tlie  further  prosecution  of  the  cause.  The  authorities  are  clearly 
the  other  way."  Dewey,  J.,  in  Wilson  v.  Nevers,  20  Picli.  (Mass.)  20,  23  (1S38). 
See,  further,  1  Ency.  Ij.  &  P.  45 ;   31  Cyc.  ISO. 


Ch.  5)  DILATORY   OBJECTIONS  621 

erts,  5  Me.  441,  442;  Hooper  v.  Jellison,  22  Pick.  (Mass.)  250.  It  is 
broader  and  more  comprehensive  than  the  precedents  referred  to,  inas- 
much as  it  alleges  that  not  only  at  the  date  of  the  writ,  but  at  the  time 
of  the  plea  filed,  the  residence  of  such  party  was  within  this  jurisdic- 
tion, following  the  dicta,  rather  than  the  decision,  of  the  court  in  Bel- 
lamy V.  Oliver,  65  Me.  108,  110,  and  the  decision  in  White  v.  Gas- 
coyne,  3  Exch.  35.  The  decision  in  the  English  exchequer  court  was 
based  upon  a  special  statute  of  3  &  4  Wm.  IV.  c.  42,  passed  in  1833, 
radically  changing  the  common-law  practice  and  requisites  of  pleas  in 
abatement  for  nonjoinder  of  defendants.  By  that  statute  it  is  provid- 
ed that  "no  plea  in  abatement,  for  the  nonjoinder  of  any  person  as  a 
codefendant,  shall  be  allowed  in  any  court  of  common  law,  unless  it 
shall  be  stated  in  such  plea  that  such  person  is  resident  within  the  ju- 
risdiction of  the  court,  and  unless  the  place  of  residence  of  such  per- 
son shall  be  stated,  with  convenient  certainty,  in  an  affidavit  verifying 
such  plea."  "This  statute,"  says  Coltman,  J.,  in  Joll  v.  Curzon,  4  Man. 
G.  &  S.  249,  56  E.  C.  L.  253,  "was  designed  to  remedy  an  existing  in- 
convenience to  which  the  plaintiff  was  liable.  That  inconvenience  was 
that,  unless  he  sued  all  the  parties  to  the  contract,  he  ran  the  risk  of 
having  a  plea  in  abatement  put  upon  the  record ;  the  effect  of  which 
might  have  been,  as  in  Havelock  v.  Geddes  [12  East,  622],  that,  one 
of  the  joint  contractors  being  out  of  the  jurisdiction  of  the  court,  the 
plaintiff  must  outlaw  him  before  he  could  proceed  with  his  action 
against  the  others." 

But  the  precedents  to  which  we  have  referred  were  framed  with 
reference  to  the  law  and  practice  as  existing  prior  to  the  English  stat- 
ute named,  and  as  it  exists  to-day  in  this  state ;  for  that  statute  has 
never  become  a  part  of  the  common  law  of  this  state,  nor  has  it  been 
enacted  here. 

But  it  is  claimed  in  support  of  the  demurrer  that  all  that  is  alleged 
in  the  plea  may  be  true,  and  still  the  writ  held  good ;  that,  though  the 
contract  alleged  may  have  been  made  jointly  by  the  defendant  and  an- 
other, yet  that  joint  liability  may  long  before  have  ceased;  that  the 
party  not  joined  may  have  been  discharged  in  insolvency,  or  the  prom- 
ise barred  by  the  statute  of  limitations ;  and  that  the  plea  in  abatement 
is  therefore  defective  in  substance,  in  not  excluding  such  supposable 
matter  as  would,  if  alleged  on  the  opposite  side,  defeat  the  plea. 

The  answer  to  this  proposition  is  found  in  the  fact  that  such  sup- 
posable matter,  if  it  existed,  should  more  properly  have  been  averred 
in  the  plaintiff's  writ  by  joining  such  parties  upon  the  record,  even  if 
a  discontinuance  as  to  them  afterwards  became  necessary,  and  that  it 
will  not  be  sufficient  for  the  plaintiff  to  reply  these  facts  by  way  of 
replication  to  the  defendant's  plea  in  abatement. 

Thus  it  has  been  held  that  if  one  of  two  joint  contractors  is  dead, 
and  the  survivor  is  sued  alone,  with  no  mention  being  made  in  the  writ 
of  the  death  of  the  other  party,  it  will  not  be  sufficient  for  the  plaintiff* 
to  allege,  in  reply  to  a  plea  of  nonjoinder,  the  fact  of  his  death,  for 


622  PRINCIPLES   OF   GENERAL  ArPLICATION  (Part  S 

this  would  contradict  his  declaration  upon  a  separate  contract  by  ad- 
mitting it  a  joint  one.    Bovill  v.  Wood,  2  Maule  &  S.  25. 

In  all  actions  upon  contract,  the  defendant  has  a  right  to  require 
that  his  codebtor  should  be  joined  with  him,  and  the  plaintiff  cannot 
deprive  him  of  that  right,  or  the  benefit,  whatever  it  may  be,  of  having 
his  discharge  from  liability  stated  on  the  record.  Hence  the  practice 
has  always  been,  in  accordance  with  the  approved  methods  of  pleading, 
to  join  all  the  contracting  parties,  if  living,  or,  if  dead,  to  make  the 
proper  averments.    Harwood  v.  Roberts,  5  Me.  441. 

And  it  has  been  the  doctrine  of  the  English  courts,  as  well  as  that 
of  our  own  state  (Bovill  v.  Wood,  supra ;  Noke  v.  Ingham,  1  Wils.  89 ; 
West  v.  Furbish,  67  Me.  17,  19),  that  where  one  of  the  joint  promisors 
had  become  bankrupt,  and  obtained  his  discharge,  he  must  necessarily 
be  joined  in  the  suit  in  the  first  instance,  for  though  discharged  by 
operation  of  law  he  is  not  bound  to  take  the  benefit  of  it,  although  he 
may,  if  he  will,  plead  his  certificate  in  discharge,  and  the  plaintiff  may 
then  discontinue  as  to  him,  upon  payment  of  costs,  and  proceed  against 
the  other. 

The  rule,  as  laid  down  by  Chitty  (1  Chit.  PI.  42a),  is  thus  stated: 
"Joint  contractors  must  all  be  sued,  although  one  has  become  bank- 
rupt, and  obtained  his  certificate,  for,  if  not  sued,  the  others  may  plead 
in  abatement." 

The  decisions  of  the  English  courts  have  been  that  the  plaintiff 
could  discontinue  as  to  one  joint  contractor,  and  proceed  against  the 
other,  applied  only  in  cases  of  bankruptcy,  and  that  a  replication  of 
infancy,  coverture,  ne  unques  executor,  and  the  like,  of  the  party  not 
sued,  was  a  good  answer  to  a  plea  of  nonjoinder  in  abatement,  on  the 
ground  that  in  such  cases  the  plaintiff  could  not  enter  a  nolle  prosequi 
as  to  one  of  such. joint  contractors  without  discharging,  all. 

But  the  American  courts  have  taken  a  different  view  of  the  matter, 
holding  that  a  discontinuance  as  to  a  party  defendant,  in  cases  where 
it  was  proper,  was  a  matter  of  practice,  resting  in  the  discretion  of  the 
court,  and  therefore  that  whenever  defendants  sever  in  their  pleas, 
and  one  or  more  pleads  a  plea  which  merely  goes  to  his  personal  dis- 
charge, but  not  denying  the  cause  of  action  alleged  in  the  writ,  the 
plantiff  may  prevail  against  some  of  the  defendants,  while  he  fails,  as 
to  those  who  prevail,  upon  such  special  matter  of  defense.  Minor  v. 
Bank,  1  Pet.  46,  74,  7  L.  Ed.  47 ;  Moore  v.  Knowles,  65  Me.  493 ;  West 
V.  Furbish,  supra;  Cutts  v.  Gordon,  13  Me.  474,  478,  29  Am.  Dec.  520; 
Woodward  v.  Newhall,  1  Pick.  (Mass.)  500;  Tuttle  v.  Cooper,  10  Pick. 
(Mass.)  281. 

Therefore,  wherever  the  American  doctrine  prevails,  it  will  not  be 
sufficient  for  the  plaintiff,  in  answer  to  a  plea  in  abatement  for  non- 
joinder of  a  copromisor,  to  reply  the  fact  of  something  which  merely 
goes  to  the  personal  discharge  of  such  copromisor,  any  more  than  it 
would  in  the  case  of  the  death  of  one  joint  contractor,  where,  as  we 
have  observed,  such  replication  or  answer  by  the  plaintiff  to  the  de- 


Ch.  5)  DILATORY    OBJECTIONS  623 

fendant's  plea  would  not  be  allowable.  2  Greenl.  Ev.  §  133;  Gibbs  v. 
Merrill,  3  Taunt.  313,  314. 

This  supposable  matter  could  not,  therefore,  be  "properly  alleged  on 
the  opposite  side  to  defeat  the  plea."  If  it  could  not,  then  the  plea  an- 
ticipates and  excludes  all  such  matter  as  could  properly  be  alleged  in  a 
replication  to  defeat  the  plea,  and  is  sufficient.  The  case  is  before  this 
court  simply  upon  exceptions  to  the  ruling  of  the  court  below  in  sus- 
taining the  demurrer,  and  adjudging  the  defendant's  plea  bad. 

Whether  the  furtherance  of  justice  will  require  that  the  plaintiff, 
upon  proper  motion,  shall  be  allowed  to  amend  his  declaration,  must 
be  determined  by  the  court  at  nisi  prius.  Institute  v.  Haskell,  71  Me. 
487,  491 ;  Plaisted  v.  Walker,  77  Me.  459,  462,  1  Atl.  356 ;  Rev.  St.  c. 
82,  §§  13,  23. 

Exceptions  sustained.  Demurrer  overruled.  Plea  adjudged  good. 
Declaration,  bad. 

Pe:te;rs,  C.  J.,  and  Danforth,  Libbijy,  and  Emery,  J  J.,  concurred. 


-  HUMPHREY  V.  WHITTEN. 
(Supreme  Court  of  Alabama,  1849.     17  Ala.  30.) 

Error  to  the  Circuit  Court  of  Lauderdale.  Tried  before  the  Hon. 
Daniel  Coleman. 

Trover  by  the  defendant  against  the  plaintiff  in  error  for  the  conver- 
sion of  a  horse.  The  defendant  was  declared  against  by  the  name  of 
James  Humphreys  and  filed  as  a  plea  "that  he  now  is  and  always  was 
called  and  known  by  the  name  of  James  Humphrey,  and  not  James 
Humphreys,  as  by  the  plaintiff's  writ  is  supposed;  wherefore  he  prays 
judgment  of  said  writ  that  the  same  be  quashed."  To  this  plea,  which 
was  sworn  to  by  the  defendant,  the  plaintiff  demurred,  and  the  court 
sustained  the  demurrer.  The  ruling  of  the  court  is  now  assigned  as 
error. 

Parsons,  J.  In  spelling  and  in  sound  there  is  a  perceptible  differ- 
ence between  the  names  of  Humphreys  and  Humphrey.  They  are 
different  names.  The  plea  in  this  respect  is  therefore  good.  But  the 
plea  concludes  neither  with  a  verification,  nor  to  the  country.  It 
denies  the  surname,  Humphreys,  by  which  the  defendant  is  sued,  and 
avers  his  true  surname  to  be  Humphrey.  This  last  is  new  matter,  and, 
of  course,  the  plea  should  have  concUnled  with  a  verification,  in  order 
that  the  plaintiff  might  have  an  opportunity  to  answer  it.  1  Saunders' 
R.  103,  n.  1 ;  Service  v.  Heermance,  1  Johns.  (N.  Y.)  91-.  The  plain- 
tiff below  filed  a  general  demurrer  to  this  plea,  and  it  was  sustained 
by  the  Circuit  Court.  It  does  not  appear  upon  what  ground  it  was 
sustained,  but  it  is  sufficient  that  there  is  a  good  ground,  the  omis- 
sion of  the  verification.  Our  statutes  relative  to  amendments  and 
special  demurrers  have  produced  no  change  of  the  law  in  respect  of" 


624  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

this  question,  but  it  stands  as  at  common  law.  Although  there  were 
special  demurrers  at  common  law,  they  were  rarely  used  and  never 
necessary  except  in  cases  of  duplicity.  The  statute,  27  Eliz.  c.  5,  ren- 
dered it  necessary  to  demur  specially  when  the  party  desired  advantage 
of  any  imperfection,  defect  or  want  of  form,  in  any  writ,  plaint,  etc. 
Then  came  the  statute  of  4  Ann.  c.  16,  §  1,  which  rendered  a  special 
demurrer  necessary  in  relation  to  various  causes,  which  were  still 
regarded  as  matters  of  substance.  This  statute,  among  other  things, 
rendered  it  necessary  to  demur  specially  for  the  want  of  the  averment 
or  verification  in  question.  But  these  statutes  did  not  extend  to  pleas 
in  abatement.  It  was  never  necessary  to  demur  specially  to  them.  1 
Tidd's  Practice,  695,  696,  ninth  edition.  By  our  statute  of  1807  it 
became  necessary  here  to  demur  specially  for  any  defect  or  want  of 
form  in  writs,  declarations,  or  other  pleading,  etc.  Clay's  Dig.  321,  § 
50.  The  want  of  the  necessary  verification  in  concluding  a  plea  in 
bar  could  only  be  taken  advantage  of  since  this  statute,  I  presume,  by  a 
special  demurrer.  But  the  act  of  1824  takes  away  all  special  demur- 
rers. Clay's  Dig.  334,  §  118.  It  says  "no  demurrer  shall  have  any 
other  efifect  than  that  of  a  general  demurrer."  I  presume  there  is 
no  mode  now  of  taking  advantage  of  an  error  of  this  kind,  in  a  plea 
in  bar.  But  this  is  not  the  case  here  in  relation  to  a  plea  in  abatement, 
any  more  than  in  England,  for  it  has  been  held  by  this  court  that  our 
statutes  do  not  extend  to  pleas  in  abatement,  or,  at  least,  that  the  last- 
mentioned  act  does  not.  Casey  v.  Cleveland  et  al.,  7  Port.  445.  We 
have  no  hesitation  in  concluding  that  pleas  in  abatement  are  not  afifect- 
ed  by  these  statutes  and  that  they  are  left  as  at  common  law  when  a 
special  demurrer  was  never  necessary,  unless  in  cases  of  duplicity.  Let 
the  judgment  be  affirmed.^* 

34  For  numerous  cases  accord,  see  1  Ency.  L.  &  P.  70,  note  14;  31  Cyc.  272, 
note  14. 

"In  CMtty  on  Pleading,  vol.  1,  p.  499,  Stephen  on  Pleading,  p.  141,  note,  and 
Saunders  on  Pleading,  etc.,  vol.  1,  p.  4,  it  is  laid  down  generally  that  demurrers 
to  ]ileas  in  abatement  need  not  be  special.  But  the  authority,  and.  the  sole 
authority,  referred  to  by  them  all,  is  the  case  of  Lloyd  v.  Williams,  2  M.  &.  S. 
4S4  (1S14). 

"But  on  examining  this  case,  we  find  that  it  is  one  of  the  many  instances 
where  a  very  broad  doctrine  has  been  laid  down  in  a  headnote,  on  authority 
of  a  case  which  does  not  sustain  it.  It  was  not  a  case  of  demurrer  for  duplic- 
ity, and  therefore  that  case  did  not  come  in  conflict  with  the  old  well-settled 
doctrine  that  demurrers  for  duplicity  must  always  be  special.  But  still  the 
law  has  so  long  (on  authority  of  the  text-books)  been  considered  as  settled 
that  we  do  not  feel  at  liberty  to  unsettle  it."  Potter,  J.,  in  Hoppin  v.  Jenckes, 
0  R.  I.  102,  105  (1S6S). 

Even  where  misnomer  appears  on  the  face  of  the  declaration,  it  is  not 
ground  for  demurrer.  Rich  v.  Boyce,  39  Md.  314  (1874)  isemble;  Hudson 
V.  Poindexter,  42  Miss.  304  (ISGS),  semble;  Slocum  v.  McBride,  17  Ohio,  607 
(1848). 


Ch.  5)  DILATORY   OBJECTIONS  625 

RYAN  V.  MAY. 
(Supreme  Court  of  Illinois,  1852.     14  111.  49.)     • 

CaTon,  J.  This  action  was  brought  upon  a  note  payable  to  the 
bank,  by  Ryan,  surviving  assignee  of  the  bank,  in  whom  the  legal  title 
was  vested  by  the  assignment  and  several  acts  of  the  legislature.  The 
defendant  filed  a  plea  in  abatement,  which  states  in  substance  that 
Ryan  was  not  the  assignee  of  the  bank,  and  had  no  legal  interest  in 
the  note  sued  on,  because  he  with  others  had,  by  a  certain  deed  of 
indenture,  conveyed  and  transferred  the  note  to  William  Thomas.  To 
this  plea  a  replication  was  filed  averring  that  Ryan  did  not  by  indorse- 
ment on  the  note  assign  it  to  Thomas,  so  as  to  vest  the  legal  title  in 
him.  To  this  replication  a  demurrer  was  filed  which  was  sustained  by 
the  circuit  court,  and  judgment  rendered  for  the  defendant  on  the 
plea  in  abatement.  The  defence  set  up  by  the  plea  was  certainly  not 
answered  by  the  replication,  and  if  the  plea  was  good,  the  replication 
was  undoubtedly  bad.  The  plea  states  that  Ryan  assigned  the  note 
to  Thomas  by  a  separate  instrument.  This  statement  is  not  denied 
by  the  replication,  but  that  avers  that  Ryan  did  not  assign  it  by  indorse- 
ment thereon.  The  plea  in  our  opinion  was  insufficient.  It  did  not 
show  that  the  legal  title  to  the  note  had  passed  out  of  Ryan.  By  our 
statute  the  legal  title  to  a  note  cannot  be  transferred  by  a  separate  in- 
strument in  writing.  The  statute  says  that  the  note,  bond,  bill,  etc., 
"shall  be  assignable  by  indorsement  thereon,  under  the  hand  or  hands 
of  such  person  or  persons,  and  of  his,  her,  or  their  assignee  or  as- 
signees in  the  same  manner  as  bills  of  exchange  are,  so  as  absolutely 
to  vest  the  property  thereof  in  each  and  every  assignee  or  assignees 
successively."  This  is  the  mode  pointed  out  by  the  statute,  and  it 
must  be  pursued  in  order  to  vest  a  right  of  action  in  the  assignee  of 
a  note.  The  plea,  therefore,  did  not  show  that  the  legal  title  had 
passed  from  the  plaintiff  to  Thomas.  The  demurrer  should  have  been 
carried  back  to  the  plea. 

But  the  defendant  insists  that  the  declaration  was  also  bad,  because 
the  time  had  elapsed  within  which  the  assignees  were  required  to  wind 
up  the  affairs  of  the  bank,  and  that  hence  the  rights  of  the  plaintiff  as 
assignee  had  ceased.  This  question  we  are  not  at  liberty  now  to  in- 
vestigate. It  is  a  general  rule  that  a  demurrer  must  be  carried  back 
and  sustained  to  the  first  defective  pleading.  This  rule  does  not  apply, 
so  as  to  carry  a  demurrer  behind  a  plea  in  abatement.  If  the  plea  is 
bad,  the  judgment  must  be  respondeat  ouster.  In  stating  the  excep- 
tions to  the  general  rule  that  a  demurrer  "must  be  sustained  to  the 
first  defective  pleading,  Mr.  Stephen  says:  ''First,  if  the  plaintiff"  de- 
mur to  a  plea  in  abatement,  and  the  court  decide  against  the  plea,  they 
will  give  judgment  of  respondeat  ouster,  without  regard  to  any  defects 
in  the  declaration."     Stephen's  Plead.  144.     This  rule  was  applied  in 


626  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

Rich  V.  Pilkington,  Carthew's  R.  171,  and  in  Hastrop  v.  Hastings,  1 
Salk.  212. 

When  we  consider  the  peculiar  character  of  a  plea  in  abatement,  the 
reason  is  obvious.  Unlike  other  pleas,  a  plea  in  abatement  dofes  not 
profess  to  answer  the  declaration,  or  defeat  the  cause  of  action.  It 
goes  only  to  the  writ.  It  would  be  inconsistent  with  all  sound  rules 
of  pleading,  to  carry  a  demurrer  to  one  pleading  back  to  another,  to 
which  it  did  not  profess  to  be  an  answer,  and  with  which  it  had  no 
connection.  Dean  v.  Boyd,  9  Dana  (Ky.)  179;  Crawford  v.  Slade,  9 
Ala.  887,  44  Am.  Dec.  463.  The  demurrer  should  have  been  sustained 
to  the  plea  in  abatement,  and  a  judgment  rendered  that  the  defendant 
answer  over. 

The  judgment  of  the  circuit  court  must  be  reversed,  and  the  cause 
remanded. 

Judgment  reversed.^^ 


CLARK  V.  LATHAM. 
(Supreme  Court  of  Arkansas,  1867.     25  Ark.  16.) 

WalkKR,  C.  J.^®  This  is  an  action  of  debt,  by  attachment,  to  which 
several  pleas  in  abatement  were  filed,  for  an  alleged  insufficiency  of 
the  writ  and  of  the  attachment  bond.  To  these  pleas  demurrers  were 
filed  and  overruled.  It  appears,  from  the  record,  that  the  plaintiff  was 
given  leave  to  reply,  and  did,  on  the  same  day,  file  several  replications 
to  each  of  the  pleas  in  abatement.  At  a  subsequent  day  of  the  term, 
the  defendant  moved  the  court  to  strike  the  replications  from  the  files, 
and  to  render  final  judgment  in  his  favor,  upon  his  pleas  in  abate- 
ment; which  motion  was  sustained  by  the  court,  the  replications 
stricken  out,  and  final  judgment  rendered  in  favor  of  the  defendant, 
and  for  costs.  The  plaintiff  excepted  to  the  opinion  of  the  court, 
made  the  replications  part  of  the  record,  and  appealed. 

The  appellant  contends  that  the  judgment  of  the  court  below,  upon 
his  demurrer,  was  not  necessarily  final;  and  that,  unless  under  ex- 
traordinary circumstances,  it  is  the  duty  of  the  court,  after  demurrer 
overruled  to  a  plea  in  abatement,  to  permit  the  plaintiff  to  reply  to 
it;  and  that  the  court,  in  this  instance,  having  granted  such  leave, 
under  which  replications  were  promptly  filed,  it  was  error,  upon  the 
motion  of  the  defendant,  to  strike  them  from  the  files  and  render  final 
judgment  against  her. 

After  a  careful  examination  of  most  of  the  English  cases,  upon  the 
authority  of  which  the  common-law  rule  of  practice  seems  to  have 
been  established,  as  well  as  of  several  American  decisions  in  affirmance 
of  the  common-law  rule,  we  have  been  unable  to  find  in  any  of  them 

35  For  cases  accord,  see  1  Ency.  L.  &  P.  71,  note  17;   31  Cyc.  343,  note  37. 

36  A  portion  of  the  opinion  is  omitted. 


Ch.  5)  DILATORY   OBJECTIONS  627 

a  satisfactory  reason  for  holding  that,  where  the  judgment  upon  a  plea 
in  abatement  is  for  the  defendant,  final  judgment  must  as  of  right  be 
rendered  in  accordance  with  the  prayer  of  the  plea.  So  to  hold  cer- 
tainly militates  against  the  rule  which  disfavors  dilatory  pleas.  Yet 
we  find,  upon  looking  into  the  authorities,  that  it  is  a  well-established 
rule  of  the  law,  from  which  the  American  courts  have  not  departed, 
that  where  an  issue  of  either  law  or  fact,  upon  a  plea  in  abatement, 
is  found  for  the  defendant,  the  judgment  is  that  the  writ  be  quashed. 
Tidd's  Practice,  642;  Stephen  on  Pleading,  107;  Archbold's  Civil 
Pleading,  315;  Chitty's  PI.  vol.  1,  466;  McKinstry  v.  Pennoyer,  1 
Scam.  (111.)  319;  Motherell  v.  Beaver,  2  Oilman  (111.)  69;  Cushman 
V.  Savage,  20  111.  330;  Eddy  v.  Brady,  16  111.  306."  And  so  absolute 
is  this  rule  that  it  has  been  held  that  it  is  error  to  grant  leave  to  reply 
after  demurrer  to  a  plea  in  abatement  overruled.  1  Scam.  319;  2 
Gillman,  69. 

In  the  State  of  Alabama,  by  statute,  the  rule  has  been  changed. 
Skinner,  Judge,  who  delivered  the  opinion  of  the  court  in  Eddy  v. 
Brady,  remarked  that  he  could  see  no  good  reason  why,  upon  prin- 
ciple, where  the  demurrer  is  overruled,  the  judgment  should  be  final, 
and  the  plaintiiT  should  not  be  allowed  to  take  issue  upon  the  truth  of 
the  plea,  but  that,  in  the  absence  of  a  statute  changing  the  practice, 
the  courts  were  not  at  liberty  to  depart  from  it. 

Upon  examination  of  our  statute,  we  find  no  provision  under  which 
this  rule  may  be  relaxed.  And  in  accordance  with  the  authorities 
cited,  we  must  hold  that,  in  this  case,  leave  to  the  plaintiff  to  reply 
was  improvidently  granted,  and  that  it  was  not  error  in  the  court  below 
to  strike  them  from  the  files  and  render  final  judgment  for  the  de- 
fendant.     *      *      *  38 

37  Gould,  Pleadins:  (Hamilton's  Ed.)  2S7 :  E.  O.  Painter,  etc.,  Co.  v.  Dupont, 
54  Fla.  288,  202.  45  South.  507  (1907).  semble;  Campbell  v.  Hudson,  106  Mich, 
523,  528,  64  N.  W.  483  (1895),  semble.     Accord. 

38  "Did  the  court  err  in  refusing  leave  to  reply  to  the  plea  in  abatement? 
Pleas  in  abatement,  being  dilatoi^y  defenses,  are  not  favored;  they  are  not 
amendable ;  they  must  be  inteiposed  at  the  first  opportunity ;  yet,  if  a  demur- 
rer is  sustained  to  such  a  plea,  the  .iudgment  is  respondeat  ouster,  and  the  de- 
fendant may  plead  to  the  action.  [Stephen,  Pleacling  (Williston's  Ed.)  *116; 
Gould,  Pleading  (Hamilton's  Ed.)  287;  1  Ency.  PL  &  Pr.  .30;  1  Ency.  L.  & 
P.  72,  and  cases  in  note  1 ;  31  Cyc.  351,  note  38.  Accord. — Ed.]  VThy.  then, 
upon  principle,  where  the  demurrer  is  overruled,  the  judgment  should  be 
final,  and  the  plaintiff  should  not  be  allowed  to  take  issue  upon  the  truth  of 
the  plea,  seems  difficult  to  comprehend,  and  an  anomaly  in  pleading.  But 
such  is  the  law,  and  the  legislature  alone  is  competent  to  change  it."  Skinner, 
J.,  in  Eddy  v.  Brady,  16  111.  306,  307  (1855). 


628  PRINCIPLES   OP   GENERAL   APPLICATION  (Part  3 

ALLING  V.  SHELTON. 

(Supreme  Court  of  Errors  of  Connecticut,  1S44.     16  Conn.  436.) 

This  was  a  writ  of  replevin,  brought  by  Chester  Ailing  against 
Charles  T.  Shelton,  to  obtain  the  possession  of  goods  belonging  to  the 
plaintiff,  which  had  been  taken,  by  a  writ  of  attachment  in  the  de- 
fendant's favour,  against  Leverett  Ailing.  In  connexion  with  the 
writ  of  replevin  there  was  a  count  in  trespass. 

In  the  county  court  to  which  the  suit  was  brought,  the  defendant 
pleaded  in  abatement  that  said  writ  of  replevin  was  issued  without 
any  notice  to  the  defendant  being  served  on  him  that  it  was  about  to 
issue,  that  he  might  appear  before  the  authority  about  to  issue  tha 
same,  and  be  heard  relative  to  the  amount  of  the  bond  and  the  suffi- 
ciency of  the  surety,  offered  by  the  party  applying  for  said  writ  of 
replevin.  The  fact  alleged  in  the  plea  in  abatement  was  traversed  by 
the  plaintiff,  on  which  issue  was  joined  to  the  jury.  After  a  trial  be- 
fore the  jury  on  this  issue,  they  returned  a  verdict  for  the  plaintiff. 
The  court  accepted  the  verdict,  and  thereupon  rendered  judgment  that 
the  defendant  answer  over  to  the  plaintiff's  declaration.     *     *     * 

Williams,  C.  J.^^  The  plaintiff  claims  that  the  judgment  below 
shall  be  reversed,  because  after  issue  joined,  and  tried  by  the  jury, 
and  found  for  him,  the  judgment  was  not  peremptory,  but  respondeas 
ouster. 

That  this  judgment  was  not  correct,  according  to  the  English  prac- 
tice, cannot  be  doubted.  At  an  early  period  this  question  seems  to 
have  been  settled,  as  appears  by  a  case  cited  in  Eichora  v.  Lemaitre, 
2  Wills.  367,  and  confirmed  by  uniform  decisions  ever  since..  Amcots 
v.  Amcots,  T.  Raym.  118;  s.  c.  1  Sid.  252;  s.  c.  1  Vent.  22;  Bonner  v. 
Hall,  1  Ld.  Raym.' 338;  s.  c.  Carth.  433;  Crosse  v.  Bilsoh,  2  Ld.  Raym. 
1022 ;  Medina  v.  Stoughton,  1  Ld.  Raym.  593 ;  Thompson  v.  Colier, 
Yelv.  112;  2  Wms.  Saund.  211,  n.  3. 

In  our  sister  states  the  authorities  are  not  much  less  uniform.  In 
Massachusetts  it  is  treated  as  settled  law.  Boston  Glass  Manufactur- 
ing V.  Langdon,  24  Pick.  49,  35  Am.  Dec.  292.  And  in  New  Hamp- 
shire. Dodge  V.  Morse,  3  N.  H.  232;  Jewett  v.  Davis,  6  N.  H.  518. 
In  Vermont  the  same  final  judgment  is  rendered,  whether  the  issue 
is  tried  by  the  court  or  the  jury.  Peach  v.  Mills,  13  Vt.  501.  So  too 
in  New  York  they  have  decided  as  in  Massachusetts.  Haight  v.  Hol- 
ley,  3  Wend.  258;  McCartee  v.  Chambers,  6  Wend.  649,  22  Am.  Dec. 
556.  And  in  Pennsylvania.  Hollingsworth  v.  Duane,  Wal.  Sr.  154, 
Fed.  Cas.  No.  6,618;  MeHaft'y  v.  Share,  2  Pen.  &  W.  361.  In  Ken- 
tucky the  courts  have  come  to  the  same  result.  Moore  v.  Morton,  1 
Bibb,  234.    And  in  Indiana.     John  v.  Clayton,  1  Blackf.  54.*° 

39  A  portion  of  the  statement  of  facts  and  of  the  opinion  are  omitted. 
4  0  For  numerous  other  cases  accord,  see  1  Ency.  PI.  &  Pr.  31;    1  Ency.  L.. 
&  P.  78,  note  25 ;   23  Cyc.  773,  note  39. 


Ch.  5)  DILATORY   OBJECTIONS  629 

But  it  is  claimed  that  such  is  not  the  practice  in  this  state.  That 
parties  have  sometimes  acquiesced  in  such  judgments  in  this  state  is 
certainly  true;  but  that. this  has  been  the  uniform  practice  is  not  true. 
It  is  certainly  true  that  if  an  issue  in  fact  is  tried  by  the  court,  and 
found  against  the  defendant,  the  judgments  have,  for  half  a  century, 
been  respondeas  ouster.  Fitch  v.  Lothrop,  1  Root,  192 ;  Nichols  v. 
Heacock,  1  Root,  286;  Thomas  v.  Dorchester,  2  Root,  124.  But  so 
far  from  impairing  the  commxon-law  rule  as  to  the  effect  of  a  verdict 
upon  such  an  issue,  the  judge,  who  assisted  in  these  decisions,  and  re- 
ported them,  puts  it  down  among  "points  of  law  adjudged,"  that,  when 
the  court  determine  the  plea  to  be  insufficient,  the  judgment  is  that 
the  defendant  shall  answer  over  to  the  action ;  but  if  the  issue  is  joined 
to  the  jury,  and  they  find  against  the  defendant,  they  assess  damages 
for  the  plaintiff.  1  Root,  566.  And  such  was  the  distinction  taken  by 
the  superior  court  in  Bird  v.  Thompson,  Litchfield  county,  1801,  ]\ISS. 
of  Judge  Mitchell.  And  Judge  Gould,  though  not  satisfied  with  the 
distinction,  speaks  of  its  having  been  recognized  by  the  supreme  court 
of  errors.  Gould's  PI.  301.  And  Judge  Swift,  who,  in  his  system,  has 
laid  it  down  as  law  that  a  finding  upon  such  an  issue,  whether  by  the 
court  or  jury,  would  be  final  (2  Swift's  Syst.  204),  in  his  last  work, 
speaking  of  our  practice  on  trial  by  the  court  (after  laying  down  the 
common  law  rule),  says  this  practice,  i.  e.,  of  a  respondeas  ouster  after 
issue  to  the  court,  unknown  to  the  common  law,  has  never  received  the 
sanction  of  the  court  of  dernier  resort  (1  Sw.  Dig.  613).  After  the 
doubts  suggested  by  these  eminent  judges,  we  ought  to  say  that  the 
practice  of  not  rendering  a  peremptory  judgment,  where  the  issue  has 
been  tried  by  the  court,  has  been  too  long  settled,  and  too  often  recog- 
nized by  the  superior  court,  to  be  disturbed  at  this  late  period. 

On  the  other  hand,  we  know  of  no  such  practice,  much  less  of  such 
decisions,  as  will  justify  us  in  departing  from  the  common-law  rule 
upon  verdicts  of  the  jury.  The  reason  of  this  rule  is  said  to  be  that 
the  common  law  admits  of  but  one  issue  to  the  jury.  1  Sw.  Syst.  205. 
Another  reason  assigned  is  that  where  a  man  pleads  as  true  a  fact  that 
he  knows  to  be  false,  and  a  verdict  be  against  him,  it  ought  to  be  final ; 
and  every  man  must  be  presumed  to  know  whether  his  plea  be  true  or 
false.  2  Wils.  368.  The  true  reason,  we  think,  is  that  pleas  of  this 
description  are  usually  merely  dilatory  pleas,  which  it  is  *the  policy 
of  the  law  to  discourage ;  they  are  those  required  to  be  filed  early,  and 
not  allowed  to  be  amended  and  made  conclusive,  if  the  defendant  will 
risk  a  trial  by  jury  thereon.  We  think,  therefore,  the  judgment  must 
be  reversed.     *     *     *  *^ 

41  "This  rule,  which  is  as  ancient  as  the  common  law,  is  still  maintained 
wherever  the  common  law  prevails.  *  *  *  A  reason  given  for  this  peremp- 
tory judgment  is  that,  the  defendant  choosing  to  put  the  whole  weight  of  his 
cause  on  this  issue  when  he  might  have  had  a  plea  in  chief,  it  is  an  admis- 
sion that  he  had  no  other  defense.  1  Bacon's  Ahr.  tit.  Abatement,  P.  1  Chitty 
on  PI.  45S,  gives  as  a  rea.son  that  the  plea  is  found  to  be  untrue.     Other  writers 


630 


PRINCIPLES  OF  GENERAL  APPLICATION 


(Part  3 


say  that  the  judgment  is  not  peremptory  on  demurrer,  because  the  party  is 
not  supposed  to  be  conusant  of  the  matter  in  law,  while  he  is  supi>osed  to  be 
conusant  of  the  matter  in  fact  by  him  pleaded."  Tyler,  J.,  in  Jericho  v.  Un- 
derhill,  67  Yt.  85,  87,  30  Atl.  (iOO,  48  Am.  St.  Rep.  804  (1S04). 

"This  plea  presented  his  only  defense  to  plaintiffs'  suit,  and  when  the  jury 
found  against  him  on  this  defense,  it  was  thereby  determined  that  plaintiffs 
were  entitled  to  recover  in  the  action,  as  much  so  as  if  the  verdict  had  been 
against  defendant  on  a  plea  of  the  general  issue.  The  only  question  left  un- 
settled was  as  to  the  amount  of  plaintiffs'  recovery.  The  court  could  and 
should  have  directed  the  jury  which  tried  the  issue  to  assess  the  damages,  in 
case  it  found  for  the  plaintiffs  upon  the  issues  joined.  Failing  to  do  that,  the 
court  should  have  proceeded  in  some  other  legal  manner  to  ascertain  the 
amount  which  plaintiffs  were  entitled  to  recover.  1  Tidd's  Practice,  pp.  574, 
576."    Carter,  J.,  in  Bishop  v.  Camp,  39  Fla.  517,  519,  22  South.  735  (1897). 


Ch.  6)  CROSS-DEMANDS  631 

CHAPTER  VI 
CROSS-DEMANDS 


SECTION  1.— RECOUPMENT 


BARBER  V.  ROSE. 

(Supreme  Court  of  New  York,  1843.     5  Hill,  76.) 

Error  to  the  Rensselaer  C.  P.  Rose  sued  Barber  in  a  justice's 
court,  and  declared  in  assumpsit  on  the  common  counts,  and  also  on  a 
special  contract  by  which  the  plaintiff  agreed  to  lay  a  quantity  of  stone 
wall  and  dig  a  certain  ditch  for  the  defendant  for  the  sum  of  $100. 
The  declaration  further  averred  that,  after  performing  a  part  of  the 
work,  the  defendant  agreed  to  aid  the  plaintiff  in  completing  the  job 
for  a  reasonable  compensation.  The  plaintiff  claimed  $100  damages. 
Plea,  the  general  issue  and  set-off ;  also  that  the  plaintiff  never  finished 
any  part  of  the  ditch,  to  the  defendant's  damage  of  $100.  Replication, 
that  plaintiff  had  finished  the  ditch.  On  the  trial  before  the  justice, 
it  appeared  that  the  plaintiff  agreed  to  build  the  wall  and  dig  the  ditch 
for  the  price  mentioned  in  the  declaration,  the  work  to  be  completed 
by  a  certain  time.  The  plaintiff"  commenced  the  work,  but,  failing  to 
complete  it  by  the  stipulated  time,  the  defendant  told  him  to  go  on 
with  the  job,  and  that  he  (the  defendant)  would  turn  in  and  help  him 
on  being  allowed  a  compensation  for  his  services.  The  defendant  ac- 
cordingly furnished  assistance  to  the  plaintiff',  and  the  work  was  finally 
finished.  The  defendant  offered  to  show,  among  other  things,  by  way 
of  recoupment  of  damages,  that  he  had  sustained  loss  by  reason  of  the 
ditch  not  having  been  finished  at  the  time  specified  in  the  original  con- 
tract. The  plaintiff  objected,  on  the  ground  that  the  time  had  been 
extended  by  the  agreement  of  the  parties;  and  the  justice  sustained 
the  objection.  The  jury  rendered  a  verdict  in  favor  of  the  plaintiff  for 
$52,  whereupon  he  remitted  the  excess  beyond  $25,  and  the  justice 
gave  judgment  for  that  sum,  with  costs.  The  common  pleas  affirmed 
the  judgment  on  certiorari,  and  Barber  sued  out  a  writ  of  error. 

CowEN,  J,  There  is  no  doubt  of  the  plaintiff's  right,  when  the  dam- 
ages found  in  his  favor  exceed  the  amount  claimed  in  his'  declaration, 
to  remit  the  excess  and  take  judgment  for  the  sum  demanded ;  and  no 
good  reason  has  been  urged  against  his  doing  so  in  any  case. 

The  defendant  consented  that  the  plaintiff  should  go  on  and  finish 
his  job  after  the  time  fixed  for  it  by  the  original  contract  had  gone  by. 
Wiiit.C.L.Pl.— 41 


632  PRINCIPLES   OF   GENERAL   APPLICATION  (Part  3 

He  went  on  accordingly ;  and  this  raised  a  claim  in  his  favor  upon  a 
quantum  meruit.  But  I  do  not  think  it  necessarily  operated  as  a  waiv- 
er of  damages  for  not  performing  the  special  contract.  The  amount 
of  the  whole  was  that  the  defendant,  finding  himself  implicated  with ' 
a  man  who  was  remiss  in  the  performance  of  the  job,  preferred  going 
through  under  some  new  arrangement,  to  being  off  entirely,  refusing 
to  pay  anything  for  what  had  been  done,  and  resorting  to  another 
laborer.  He  might  have  been,  and  probably  was,  far  from  intending  to 
release  whatever  damages  might  have  accrued  from  overgoing  the 
time.  A  cause  of  action  had  arisen  in  his  favor,  and  he  did  not  dis- 
charge it  nor  agree  that  the  plaintiff  should  go  free  in  consideration  of 
doing  in  part  what  he  had  bound  himself  to  do  in  whole,  even  if  that 
would  have  been  a  valid  consideration.  In  short,  the  waiver  of  time 
was  not  a  waiver  of  damages,  as  I  admit  it  would  have  been  if  the  con- 
tract had  been  modified  before  the  time  arrived.  Treating  the  waiver 
as  a  modification  of  the  first  contract,  and  regarding  both  as  one,  which 
is  perhaps  a  correct  way  of  putting  the  case,  still  there  would  remain 
the  implied  equitable  term  that,  if  the  defendant  had  been  seriously 
damnified,  he  should  be  paid.  In  strictness,  therefore,  I  think  the  de- 
fendant was  entitled  to  recoup  the  damages ;  or,  if  they  had  been  large 
enough,  he  might  have  urged  them  as  a  bar  to  all  claim  under  the  spe- 
cial contract.  Sickels  v.  Pattison,  14  Wend.  257,  28  Am.  Dec.  527; 
Ives  V.  Van  Epps,  22  Wend.  155;  Ladue  v.  Seymour,  24  Id.  69;  Bat- 
terman  v.  Pierce,  3  Hill,  171 ;  Still  v.  Hall,  20  Wend.  51.  In  Allen  v. 
Cameron,  1  Cr.  &  Mees.  832,  where  the  work  was  imperfectly  done, 
under  an  agreed  price,  Vaughan,  B.,  said,  "I  think  the  rule  that  there 
should  be  an  abatement  of  price  for  the  nonperformance  of  any  part 
of  the  contract  by  the  plaintiff  is  a  convenient  rule."  Bayley,  B., 
said,  "The  case  of  Street  v.  Blay  puts  this  in  a  plain  .and  satisfactory 
point  of  view,  not  leaving  the  defendant  to  a  cross-action  to  recover 
for  the  diminution  in  value  by  reason  of  the  plaintiff's  nonperform- 
ance of  the  contract,  but  entitling  him  to  deduct  the  amount  of  dam- 
ages he  has  sustained."    Id.  840,  1. 

Was  the  proof  in  mitigation  admissible  under  the  general  issue?  I 
think  that  question  arises.  There  was  no  notice  of  a  claim  for  the  de- 
fault as  to  time ;  but  only  for  not  completing  any  part  of  the  ditch. 
This  rather  precluded  the  idea  that  the  defendant  intended  to  put  him- 
self on  time,  and  the  evidence  was  not  admissible  unless  proper  under 
the  general  issue. 

The  rule  of  recoupment  has  come  to  us  from  England,  accompanied 
with  the  remark  that,  where  the  quality  of  work  done  at  a  stated  price 
is  to  be  impeached,  notice  of  the  defence  is  proper.  Lord  EHenbor- 
ough,  C.  J.,  and  Lawrence,  J.,  in  Basten  v.  Butter,  7  East,  479.  Coun- 
sel had  complained  of  surprise,  and  BuUer,  J.,  had  refused  to  allow  the 
defence,  while  Lord  Kenyon  had  allowed  it;  and  the  remarks  men- 
tioned seem  to  have  been  thrown  out,  first,  as  a  reply  to  the  counsel, 
and,  secondly,  as  possibly  tending  to  reconcile  the  conflicting  decisions 


Ch.  6)  CROSS-DEMANDS  633 

of  the  judges.  They  probably  led  the  chancellor  to  say,  in  Reab  v.  ]\Ic- 
Alister,  that  he  considered  a  like  defence  perfectly  just  and  equitable 
when  the  plaintiff  has  notice  of  it.  In  Ives  v.  Van  Epps,  22  Wend. 
157,  the  point  was  raised;  but  it  was  not  thought  necessary  to  decide 
it.  I  there  said  notice  may  be  necessary,  but  added  that  the  rejection 
of  the  evidence  was  not  put  on  the  want  of  it.  The  question  has  never 
been  much  thought  of,  so  far  as  I  can  discover,  nor  do  I  find  it  has  ever 
become  necessary  to  decide  it  in  any  of  the  cases  where  it  has  been 
mooted.  In  no  English  case,  except  Basten  v.  Butter,  is  the  idea  of 
notice  suggested.  Other  decisions  have  gone  forward  without  any  at- 
tention to  it.  King  V.  Boston,  7  East,  481,  note  (a),  A.  D.  1789;  Farns- 
worth  V.  Garrard,  1  Camp.  38,  A.  D.  1807;  Okell  v.  Smith,  1  Stark. 
Rep.  107,  A.  D.  1815;  Poulton  v.  Lattimore,  9  Barn.  &  Cress.  259,  A. 
D.  1829 ;  Allen  v.  Cameron,  3  Tyrwh.  907,  1  Cr.  &  Mees.  832 ;  s.  c. 
A.  D.  1833;  Street  v.  Blay,  2  Barn.  &  Adolph.  456,  A.  D.  1831,  recog- 
nizing Cormack  v.  Gillis,  cited  7  East,  480,  481.  And  see  Cousins  v. 
Baddon,  1  Gale,  305.  These  cases  belong  to  two  classes,  one  where 
the  defence  was  partial,  another  where  it  was  total.  The  want  of  no- 
tice was  equally  disregarded  in  both.  Air.  Leigh,  in  his  late  book  on 
Nisi  Prius  (volume  1,  p.  79),  deduces  the  rule  from  Basten  v.  Butter 
in  these  words :  "The  defendant  should  (though  he  need  not)  give  no- 
tice to  the  plaintiff  of  the  intended  defence ;  for  otherwise  he  may  have 
ground  to  complain  of  surprise,  as  he  may  only  come  prepared  to  prove 
the  agreement  for  the  specific  sum."  I  presume  he  means  to  be  under- 
stood as  saying  that  the  defendant  may  or  may  not  give  notice  at  his 
pleasure ;  but  if  he  gives  none,  the  court  will  listen  more  readily  to  a 
motion  for  a  new  trial  on  the  ground  of  surprise.  That  any  judge  or 
writer  ever  intended  to  lay  the  rule  down  as  one  of  pleading,  I  do  not 
believe.  There  is  no  color  in  precedent  or  principle  for  saying  that  a 
defence  striking  directly  at  the  whole  cause  of  action  need  be  pleaded 
in  an  action  of  assumpsit ;  and  there  is  still  less  ground  for  saying  that 
a  partial  defence — matter  going  merely  to  mitigate  damages — should 
be  pleaded.  A  partial  defence  can  never,  according  to  our  cases,  be  in- 
troduced by  a  plea ;  ^  and  the  universal  rule  both  in  England  and  this 
state  is  that,  where  a  matter  cannot  be  pleaded,  it  may  be  given  in  evi- 
dence. Herkimer  Manufacturing  &  Hydr.  Co.  v.  Small,  21  Wend. 
273,  277;  Wilmarth  v.  Babcock,  2  Hill,  194,  196.  No  one  will  pretend 
that  the  statute  of  special  notice  applies ;  for  by  that  you  can  give  no- 
tice of  such  matter  only  as  may  be  pleaded.  Wilmarth  v.  Babcock,  ut 
supra.  The  matter  does  not  come  in  as  a  set-off,  and  so  is  not  within 
the  statute  of  notice  with  respect  to  that.  In  short,  I  am  .satisfied  that 
to  require  notice  of  a  defence  by  way  of  "recoupment  in  any  case, 
would  be  a  departure  from  principle,  from  precedent,  and  all  the 
analogies  of  pleading.  The  truth  is,  as  remarked  by  Mr.  Justice  Bron- 
son  in  Batterman  v.  Pierce,  the  doctrine  of  recoupment  is  of  recent 

1  See  Fleming  v.  Mayor,  supra,  p.  439,  and  notes  thereto. 


634  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

origin.^     It  would  not  have  been  surprising,  therefore,  after  the  re- 
marks in  Basten  v.  Butter,  had  some  judges  required  a  plea  or  notice. 

2  "The  common  law,  confining  every  suit  to  the  particular  subject  of  litiga- 
tion that  gave  rise  to  it,  rigidly  excluded  all  matters  of  set-off;  but  the  Eng- 
lish court  of  chancery,  extending  the  narrow  remedies  of  the  common  law,  in 
order  to  prevent  circuity  of  action  and  sujjpress  multiplicity  of  litigation,  in- 
troduced the  principle  into  their  system  from  the  civil  law,  where  it  existed 
under  the  name  of  compensation.  This  method  of  settling  cross-demands  in 
one  suit,  when  once  introduced,  recommended  itself  so  strongly  by  its  natural 
equity  and  practical  usefulness  that  it  was  ultimately  adopted  to  a  limited 
extent,  both  in  England  and  the  TTnited  States,  in  various  statutes  of  set-off, 
and  still  further,  in  our  own  state,  by  the  statute  in  relation  to  the  failure  of 
consideration.  Tliese  acts  concerning  set-otf,  however,  only  recognize  the  right 
of  persons  mutually  indebted  to  one  another  in  ascertained  amounts,  under 
independent  contracts,  to  set  off  their  respective  debts  by  way  of  mutual  de- 
duction, so  that  in  any  action  brought  for  the  larger  sum  the  residue  only 
should  be  recovered,  and  so  excluded  from  their  operation  claims  for  un- 
liquidated damages  occasioned  either  by  wrongs  done  or  obligations  violated. 
These  were  left  to  the  common  law,  and  the  same  reasons  that  forced  the 
doctrine,  to  a  partial  extent,  into  the  statute  law  of  the  land,  still  continuing 
to  operate,  the  old  doctrine  of  recoupment  has  been  recently  greatly  extended 
in  its  practical  application. 

"In  1  Dyer's  Rep.  2-6  [1515],  it  is  laid  down  in  the  reign  of  Henry  VIII : 
'If  a  man  disseize  me  of  land,  out  of  which  a  rent  charge  is  issuant.  which  has 
been  in  arrears  for  several  years,  and  the  disseisor  pay  it,  if  the  disseisee  re- 
cover in  our  assise,  the  rent  that  the  disseisor  paid  shall  be  recouped  in  dam- 
ages.' 

"Again,  in  Coulter's  Case  (5  Rep.  2-31),  it  is  said :  'And  as  to  the  case  of 
recouper  in  damages,  in  the  case  of  rent  service,  charge  or  seek,  it  was  re- 
solved that  the  reason  of  the  recouper  in  such  case  is,  because  otherwise, 
when  the  disseisee  re-enters,  the  arrearages  of  the  rent  service  charge  or 
seek  would  be  revived,  and  therefore  to  avoid  circuity  of  action,  and  "circuitas 
est  evitandus,  et  boni  judicis  est  lites,  diinmere,  ne  lis  ex  lite  oriatur,"  the 
arrearages  during  the  disseisin  shall  be  recouped  in  damages.' 

"Pullen  V.  Staniforth,  11  East,  232  [1809],  was  an  action  on  a  policy  of  in- 
surance, upon  a  voyage  to  Russia,  with  a  provision  that,  if  the  cargo  were 
denied  permission  to  be  landed,  the  master  should  on  his  return,  receive  in 
London  £2,500.  The  outward  cargo  was  denied  landing,  but  the  master,  in- 
stead of  returning  direct,  went  by  Stockholm  and  earned  freight.  The  master 
claimed  the  £2,500,  but  the  freight  earned  was  recouped  out  of  the  sum  agi-eed 
to  be  paid. 

"In  Barbour's  Law  of  Set-Off  (26)  it  is  laid  down  that  'there  is  a  species 
of  defense  somewhat  analogous  to  set-off  in  character,  which  a  defendant,  in 
some  cases,  is  allowed  to  make,  and  which  is  called  recoupment.  This  is 
where  the  defense  is  not  presented  as  a  matter  of  set-oft"  arising  on  an  in- 
dependent contract,  but  for  the  purpose  of  reducing  the  plaintift"'s  damages, 
for  the  reason  that  he  himself  has  not  complied  with  the  cross-obligations  aris- 
ing under  the  same  contract.  Tlius,  in  an  action  to  recover  compensation  for 
services  rendered,  the  employer  is  entitled  to  show  by  way  of  recoupment  of 
damages  the  loss  sustained  by  him  through  the  negligence  of  the  person  em- 
ployed, and  so  in  regard  to  a  breach  of  warranty.',  Recoupment,  in  its  origin, 
we  are  told  (Sedgwick  on  Iiam.  [3  Ed.]  431),  was  a  mere  right  of  deduction 
from  the  amoimt  of  the  plaintiff's  recovery,  on  the  ground  that  his  damages 
were  not  really  as  high  as  he  alleged ;  and  Viner's  Abridgment,  tit.  Discount 
(3,  4,  9,  10),  is  referred  to  as  authority. 

"The  American  eases,  however,  at  least  in  New  York,  Massachusetts,  Ala- 
bama, and  some  few  other  states,  now  go  to  the  full  length  of  declaring  that 
all  matters  of  counterclaim  arising  out  of  the  same  transaction,  and  not 
technically  the  subject  of  set-off,  can  be  set  off  by  way  of  recoupment  of  damag- 
es, provided  the  defendant  has  been  properly  apprised  of  the  defense,  and 
these  cases  will  now  be  briefly  referred  to.    *    *     * 

"Several  of  the  states,  however,  have  not  yet  carried  the  doctrine  to  the 


Ch.  6)  CROSS-DEMANDS  G35 

The  cases  fluctuated  for  some  time  both  in  England  and  this  state  on 
the  question  whether  the  doctrine  itself  should  be  received  into  the  law. 
About  as  n;uch  has  been  said  on  the  point  of  notice  in  one  country  as 
in  the  other ;  but  not  enough  in  either  to  give  any  serious  countenance 
to  the  idea  that  it  is  necessary. 

On  the  whole,  I  am  entirely  satisfied  that  the  fact  of  the  plaintiff's 
contract  having  been  broken  as  to  time  formed  a  good  ground  for 
claiming  damages  by  way  of  recoupment,  and  that  the  defence  was  ad- 
missible under  the  general  issue. ^  The  judgment  of  the  common  pleas 
affirming  that  of  the  justice  should  be  reversed. 

Bronson,  J.  Although  it  may  never  have  been  directly  and  neces- 
sarily decided  that  the  defendant  must  give  notice  of  his  intention  to 
recoup  damages,  it  has  often  been  assumed  by  the  courts  of  this  state 

extent  that  it  has  been  carried  in  the  states  to  whose  decisions  we  have  re- 
ferred, altliough  tlie  decisions  in  all  the  states  are  evidentlj'  tending  rapidly 
that  way,  and  the  English  courts,  much  less  inclined  than  our  own  to  relax 
old  rules,  have,  as  yet,  fallen  faf  short  of  the  American  decisions.  They  now 
hold,  however,  contrary  to  their  decisions  prior  to  Basten  v.  Butter,  7  East, 
479  [1806],  that,  upon  a  sale  or  a  special  contract  for  work,  at  a  specific  price, 
the  defendant  may  show,  in  diminvition  of  the  amount  to  be  recoveretl,  a  breach 
of  warranty  or  the  failure  of  the  contractor  to  do  the  work  as  required ;  and 
in  Mondel  v.  Steel,  decided  in  1841  (8  Mees.  &  W.  858),  Parke,  Baron,  address- 
ing himself  to  this  subject,  remarked:  'Formerly  it  was  the  practice,  where 
an  action  was  brought  for  an  agreed  price  of  a  specific  chattel  sold  with 
wari-anty,  or  of  work  which  was  to  be  performed  according  to  contract,  to 
allow  the  plaintiff  to  recover  the  stipulated  sum,  leaving  the  defendant  to  a 
cross-action  for  breach  of  the  warranty  or  contract ;  in  which  action,  as  well 
the  difference  between  the  price  contracted  for  and  the  real  value  of  the  ar- 
ticles or  of  the  work  done,  as  any  consequential  damage,  might  have  been 
recovered;  and  this  course  was  simple  and  consistent.'  But  after  the  case 
of  Basten  v.  Butter  a  different  practice,  which  had  been  partially  adojited 
before  in  the  case  of  King  v.  Basten,  began  to  prevail,  and,  being  attended 
with  much  practical  convenience,  has  since  been  generally  followed ;  and  the 
defendant  is  now  permitted  to  show  that  the  chattel,  by  reason  of  the  noncom- 
pliance with  the  warranty,  in  the  one  case,  and  the  work,  in  consequence  of 
the  nonperformance  of  the  contract,  in  the  other,  were  diminished  in  value. 
It  is  not  so  easy  to  reconcile  these  deviations  from  the  ancient  practice  with 
principle,  in  those  particular  cases  above  mentioned,  as  it  is  in  tJiose  where 
an  executory  contract,  such  as  this,  is  made  for  a  chattel  to  be  manufactured 
in  a  particular  manner,  or  goods  to  be  delivered  according  to  a  sample  where 
the  party  may  refuse  to  receive,  or  may  return,  in  a  reasonable  time,  if  the 
article  is  not  such  as  bargained  for ;  for  In  these  cases  the  acceptance  or 
nonreturn  affords  evidence  of  a  new  contract  on  a  quantum  valebat.  It  must, 
however,  be  considered  that,  in  all  these  cases  of  goods  sold  and  delivered 
with  a  warranty,  and  work  and  labor,  as  well  as  the  case  of  goods  agreed  to 
be  supplied  according  to  a  contract,  the  rule  which  has  been  found  so  con- 
venient is  established,  and  that  it  is  competent  for  the  defendant,  in  all  of 
those,  not  to  set  off,  by  a  proceeding  in  the  nature  of  a  cross-action,  the 
amount  of  damages  which  he  has  sustained  by  breach  of  the  contract,  but 
simply  to  defend  himself,  by  showing  how  much  less  the  subject-matter  of 
the  action  was  worth  by  reason  of  the  breach-  of  contract.'  "  Ix^onard,  J.,  in 
Grand  Lodge  of  Masons  v.  Knox,  20  Mo.  433,  436-i41  (lS.-)5). 

3  English  v.  Wilson,  34  Ala.  201  (1859) :  Babcock  v.  Trice,  18  111.  420,  68 
Am.  Dec.  560  (18571 ;  Beirce  v.  Sholtey,  190  111.  App.  341  (1914) ;  Tevebaugh 
V.  Reed,  5  T.  B.  Mon.  (Ky.)  179  (1827) ;  Sullivan  v.  Boswell,  122  Md.  5:^9.  89 
Atl.  940  (1914) ;  Gregory  v.  Tomlinson,  68  Vt.  410.  35  Atl.  350  (1896) ;  Colum- 
bia Ass'n  V.  Rockey,  93  Va.  678,  25  S.  E.  1009  (1896),  semble.     Accord. 


636  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

that  notice  must  be  given ;  and  such  appears  to  be  the  general  opinion 
of  the  profession.  Very  few  cases  have  fallen  under  my  observation 
v^here  the  defence  was  attempted  without  a  notice. 

If  this  must  be  regarded  as  an  open  question,  then,  upon  principle,  I 
think  notice  should  be  required.  The  defendant  often  has  an  election 
either  to  bring  a  cross-action  or  to  set  up  his  claim  by  way  of  recoup- 
ing damages ;  and  without  a  notice  the  plaintiff  may  be  surprised  on 
the  trial  by  a  defence  which  he  is  wholly  unprepared  to  meet.  There 
can  be  no  hardship  upon  the  defendant  in  requiring  him  to  give  no- 
tice, while  a  different  rule  would  be  likely  to  work  injustice.  I  am 
aware  that  notice  is  not  necessary  where  the  defence  goes  to  the  whole 
consideration  of  the  promise  on  which  the  plaintiff  sues.  Such  a  de- 
fence shows  that  the  plaintiff  has  no  cause  of  action,  and  is  fairly  cov- 
ered by  the  plea  of  non  assumpsit.  But  it  is  not  so  where,  as  in  this 
case,  the  defence  admits  that  the  plaintiff  has  a  right  to  sue,  and  seeks 
to  recoup  damages  on  the  ground  that  the  plaintiff  has  failed  to  per- 
form some  stipulation  in  the  contract  which  was  obligatory  upon  him. 
In  such  a  case  notice  should  be  given.* 

But  the  defence  seems  to  have  been  rejected  on  the  ground  that  it 
was  not,  in  its  own  nature,  admissible.  The  want  of  notice  was  not 
mentioned  in  the  court  below.  On  this  ground  I  agree  that  the  judg- 
ment should  be  reversed. 

NELSON,  C.  J,,  concurred  in  this  view  of  the  question. 

Judgment  reversed. 


SECTION  2.— SET-OFF 


COE  V.  GIVAN. 
(Supreme  Court  of  Judicature  of  Indiana,  1825.    1  Blackf.  367.) 

Appeal  from  the  Marion  Circuit  Court. 

Blackford,  J.  assumpsit.  Pleas:  1st,  nonassumpsit;  2dly,  that  the 
plaintiff  owed  the  defendant  the  sum  of  101  dollars  and  46  cents  for 
money  advanced,  which  was  more  than  the  plaintiff  ought  to  recover. 
Upon  these  pleas  issues  were  joined.  At  the  trial  the  jury  were  in- 
structed that,  if  the  payment  by  the  defendant  was  greater  than  the 
demand  of  the  plaintiff,  as  proved,  their  verdict  should  be  in  favour 
of  the  defendant  for  the  balance. 

4  See,  also,  McLure  v.  Hart.  19  Arlc.  llf)  (18.j7:  s]>ecial  plea  or  notice  under 
general  issue) ;  Puffer  Co.  v.  Krum,  210  Mass.  211,  96  N.  E.  139  (1911:  inadmis- 
sible under  general  issue);  Simonds  v.  Cross,  G3  N.  H.  123  (1SS4:  inadmissible 
under  general  issue) ;  Sterling  Organ  Co.  v.  House,  25  W.  Va.  64  (1SS4:  general 
issue  with  notice).  In  some  states  the  matter  is  regulated  by  statute  or  rule 
of  court.  See  31  Cyc.  69S,  note  3.  With  reference  to  notice  under  the  gen- 
eral issue  generally,  see  Rosenbury  v.  Angell,  supra,  p.  501,  and  notes  thereto. 


Ch.  6)  CROSS-DEMANDS  637 

Verdict  against  the  plaintiff  for  34  dollars  and  46  cents.  Motion  for 
a  new  trial  overruled,  and  judgment  upon  the  verdict.  Appeal  to  this 
court  by  the  plaintiff. 

The  motion  for  a  new  trial  was  founded  upon  an  affidavit  of  newly 
discovered  evidence.  What  diligence  was  previously  used  by  the  plain- 
tiff to  obtain  his  proof  does  not  appear.  In  listening  to  such  applica- 
tions, courts  of  justice  have  always  been  extremely  cautious,  and  have 
uniformly  overruled  them,  where,  upon  using  due  diligence,  the  evi- 
dence might  have  been  discovered  before.  6  Bac.  672.  Much  is  nec- 
essarily left  to  the  discretion  of  the  courts  below  in  motions  for  new 
trials,  and  it  requires  a  case  much  stronger  than  the  present  to  induce 
us  to  interfere  with  them  in  questions  of  this  kind. 

It  is  contended  by  the  plaintiff  that  the  jury  had  no  authority  to  find 
any  amount  in  favour  of  the  defendant.  This  question  turns  solely 
upon  the  pleadings  in  the  cause.  There  was  no  such  thing  as  a  set-oft', 
in  these  cases,  at  common  law.  By  the  Enghsh  statutes  authorizing 
the  practice  the  defendant  mu§t  plead  the  set-off  specially,  or  give  no- 
tice of  the  charges  with  the  general  issue. ^  These  statutes  of  George 
the  2d  are  not  in  force  in  this  country.*^  Since  then  the  common  law 
makes  no  provision,  and  the  English  statutes  of  set-off  have  not  been 
adopted,  we  must  rest  the  case  entirely  upon  the  act  of  assembly  in 
our  own  state.  By  that,  the  defendant,  if  he  would  get  in  a  set-off, 
must  plead  payment  of  the  demand  against  him,  and  set  out  his  charges 
in  such  plea.'^  In  the  case  under  consideration,  there  is  no  plea  of  pay- 
ment, nor  anything  like  one,  in  substance  or  form.  Of  course,  matters 
of  set-off  were  altogether  inadmissible  as  evidence  to  the  jury.  With 
respect  to  the  plea  of  non  assumpsit,  it  may  be  observed  that  the  de- 
fendant had  a  right  under  that  to  prove  payment  of  the  plaintiff's  de- 
mand, and  thus  prevent  a  recovery  against  him,  but  nothing  more. 
To  have  authorized  a  verdict  for  any  amount  against  the  plaintiff, 

5  Kershaw  v.  INIerchants'  Bank,  7  How.  (INIiss.)  3S6,  40  Am.  Dec,  70  (1S43) ; 
Concord  v.  Pillsbury,  33  N.  H.  310  (1856).     Accord. 

6  But  statutes  to  substantially  the  same  effect  have  been  passed  in  most 
jurisdictions  in  this  country.  Some  of  the  American  statutes  antedate  the 
English.     See  34  Cyc.  62S,  note  28. 

7  Patterson  v.  Steele,  3G  111.  272  (1864 :  either  payment  with  notice  or  gen- 
eral issue  with  notice  or  special  plea) ;  Ball  v.  Consolidated  Co.,  32  N.  J.  Law, 
102  (1866) ;  Glamorgan  Co.  v.  Rhule,  53  I\a.  93  (1866) ;  Richmond  Co.  v.  John- 
son, 90  Va.  775,  20  S.  E.  148  (1894).     Accord. 

In  some  .iurisdictions  set-off  must  be  given  under  the  general  issue  with 
notice.  Ferguson  v.  Milllkin,  42  Mich.  441,  4  N.  W.  185  (1880) ;  Williams  v. 
Crary,  5  Cow.  (N.  Y.)  368  (1826).  In  others  it  must  be  pl(>aded  speciallv. 
Scatchard  v.  Memphis,  etc.,  Co.,  102  Tenn.  282,  52  S.  W.  153  (1899)  (semble). 
In  others  the  statutes  require  the  filing  of  a  demand  in  set-off.  See  Pond  v. 
Niles,  31  Me.  131  (1850) ;  Kider  v.  Ocean  Insurance  Co.,  20  Pick,  (ilass.)  259 
(1838) ;    Choen  v.  Guthrie,  15  W.  Va.  lOO  (1879). 

Set-off  is  not  admissible  under  the  general  issue.  Marlowe  v.  Rogers,  102 
Ala.  510,  14  South.  790  (1893) ;  Mead  v.  Harris,  101  Mich.  585,  60  N.  W.  2S4 
(1894);  Oldham  y.  Henderson,  4  Mo.  295  (1836);  Sawvcr  v.  Vnn  Deren,  74  N. 
J.  Law,  673,  66  Atl.  396  (1907);  Stanley  v.  Turner,  68  Vt.  315,  35  Atl.  321 
(1896) ;    Richmond  Co.  v.  Johnson,  00  Va,  775,  20  S.  E.  148  (1894). 


638  PRINCIPLES   OF   GENERAL  APPLICATION  (Part  3 

there  should  have  been  a  plea  of  payment,  and  the  defendant's  charges 
therein  set  forth.  No  such  recovery  can  be  had  but  by  virtue  of  our 
statute ;  and  if  a  defendant  do  not  bring  his  case  within  its  provisions, 
he  can  derive  no  benefit  under  it.  Here  there  was  no  plea  of  payment, 
and  therefore,  no  matter  what  was  the  evidence,  a  verdict  in  favour 
of  the  defendant  for  any  amount  whatever  cannot  be  supported.  The 
charge  of  the  court  that  there  might  be  such  a  verdict  in  this  cause  is 
not  warranted  by  the  law.  The  furthest  the  jury  could  go,  without  a 
plea  of  payment,  was  merely  to  give  a  verdict  in  favour  of  the  defend- 
ant. Beyond  that  point  all  the  proceedings  are  erroneous,  and  must  be 
set  aside.  The  verdict  will  then  stand  for  the  defendant,  upon  which 
judgment  will  be  rendered,  and  he  will  have  his  costs  in  the  Circuit 
Court. 

FtR  Curiam.  The  judgment  is  reversed,  and  the  proceedings  sub- 
sequent to  so  much  of  the  verdict  inclusive  as  gives  to  the  defendant  34 
dollars  and  46  cents  are  set  aside,  with  costs.    Cause  remanded,  etc. 


INDEX 


[The  figures  refer  to  pages] 


ABATEMENT, 

See  Dilatory  Pleas. 

ACCOUNT  STATED, 

When  general  assumpsit  proper.     Parker,  249;    250  n. 

AFFIRMATIA^E  DEFENSES, 

How  pleaded  in  assumpsit.     Ward,  338;    340  n;    Young,  341;    342  n; 
Gowland,  342  ;    Maggs,  346  ;    348  n. 

In  case.     Greenwalt,  182 ;    Hill,  185 ;    188  n. 

In  covenant.     391  n;    394  n;    395  n. 

In  debt    on    simple    contract.      McGavock,    387;     388    n;     Ott,    388; 
389  n. 

In  debt  on  specialty.     Landt,  390;    Edwards,  391;    393  n;    394  n; 
395  n. 

In  replevin.     English,  244: ;    246  n. 

In  trespass.     Boss,  34 ;    Olseu,  42 ;    Finch,  43 ;    Comstock,  45 ;    Bel- 
lows, 47 ;   47  n. 

In  trover.     Hurst,  200 ;    Miller,  206 ;    210  n. 

AGENCY, 

How  pleaded.     Nicholson,  419 ;    420  n. 
AIDER, 

By  adversary's  pleadings.    Probate  Court,  558 ;   559  n. 
See  Default ;    Pleading  Over  ;    Verdict ;    Waiver. 
AMBIGUITY, 

See  Construction  of  Plead^ings;   Negative  Pregnant. 

AMENDMENT, 

Adding  essential  averment.    Neubeck,  576. 

Adding  or  striking  out  parties.     Ayer,  592 ;    593  n. 

Alleging  additional  breach  of  contract.     Coxe,  580. 

Alleging  additional  ground  of  negligence.    583  n. 

Changing  character  or  capacity  of  party.    Walker,  595  ;    596  n. 

Changing  form  of  action.     Knight,  591 ;    591  n. 

Declaration  and  plea,  liberality  as  to  contrasted.    Diamond,  568. 

Departure  from  fact  to  fact  or  from  law  to  law.     Allen,  585. 

Dilatory  plea.     570  n. 

History  of  right.     Diamond,  568. 

Introducing  new  cause  of  action.     Newall,  575  ;    Allen,  585  ;    Walker.  595  ; 

595  n  ;    596  n. 
Introducing  new  defense.     Diamond,  568. 
Relation  back  in  time.     Neubeck,  576. 
Time  for  making.    Aubeer,  566  ;    Tobias,  567  ;    Betts,  567 ;    Diamond,  568 ; 

508  n  ;    Neubeck,  576  ;   Allen,  585. 

ANOTHER  ACTION  PENDING, 

How  pleaded.     Morton.  607 ;    609  n. 
Requisites  of  plea.     609  n. 

ANTICIPATORY  ALLEGATIONS. 

When  surplusage.     Walker,  405 ;    Wall,  409. 
When  necessary.     Joliet,  467. 
When  effectual.     Smith,  471 :   472  n. 
Statute  of  limitations.     Wall,  409. 

Whit.C.L.Pl.  (639) 


640 


INDEX 

[The  figures  refer  to  pages] 


543  n. 


Bedell,  542  ;    543  n ;   City,  546  ; 


284  n ;    Harriot,  279. 
on   or  for   assumption 


of  mortgage 


Knight,  269; 


ARGUMENTATIVENESS, 

Rule  as  to.     Benham,  510. 

In  special  traverse.     Beattj',  512. 

ARREST  OF  JUDGMENT, 

After  decision  by  court.     547  n. 
After  default.     Dunn,  564;    566  a 
After  demurrer  overruled.     543  n. 
Attitude  of  court  towards  motion. 
Character  of  defects  reached  by  motion 

547  n. 

General  verdict  on  several  counts.    Posnett,  547 ;    548  n. 
Misjoinder  of  causes.     McGinnity,  374 ;    Bull,  549 ;    550  n. 
Wrong  form  of  action.     Savignac,  551. 

ASSIGNEE, 

Necessary  allegation  in  action  by.    Powell,  329;    330  n. 

ASSUMPSIT, 

Distinguished  from  case.     Zell,  75 ;    Royce,  78 ;    City,  82. 
From  covenant.     McManus,  284  ;   286  n. 
From  debt.     McGinnity,  374. 
From  local  action.     218  n. 
General  and  special  distinguished.     Bovey,  247 ;    Miller,  248 ;    Davis,  251 
Lord,  254;    Pierson,  257;    Leeds,  258;    Butterfield,  260;    Peltier,  262 
Expanded,  265 ;    268  n ;    269  n ;    Knight,  269 ;    272   n  ;    Nugent,  273 ; 
276  n ;    Penn,  280 ;   280  n ;    283  n ; 
Whether   general   or   special  proper 
debt.     Miller,  248. 
Collateral  agreement.     Marriot,  279. 
.         Complete  performance  of  portion  of  divisible  contract. 
272  n. 
Complete   performance   except    as    prevented    by    third    party.     Ex- 
panded, 265 ;    except  as  prevented  by  act  of  God.    Parker,  318. 
Compromise  of  tort.     Parker,  249. 

Contract   rescinded   or   repudiated   after   partial   performance.     Nu- 
gent, 273 ;    276  n. 
Liquidated  damages.     Butterfield,  260. 
Negotiable  paper.    Penn,  280  ;   280  n ;   283  n  ;   284  n. 
Obligation  created  by  or  compreliended  in  special  contract.     Davis,. 
251;    254  n;    Lord,  254;    Pierson,  257;    258  n;    Leeds,  258;    Pel- 
tier, 262. 
Substantial  performance.     269  n. 
Total  prevention.     269  n. 
Defenses,  how  pleaded. 

Bankruptcy.     Gowland,  342. 
Coverture.     Maggs,  346. 

Denial  of  consideration,  promise,  breach.    339  n ;    346  n. 
Denial  of  existence  of  quasi-contract.     339  u. 
Discharge,  generally.    342  n ;    348  n. 
Excuse.     340  n;    348  u. 
Former  recovery.     Young,  341. 

Nonfulfillment  of  conditions,  339  n ;    Baltimore,  343. 
Rescission.     Ward,  .3.38. 
Statute  of  Frauds.     Maggs,  346. 
Statute  of  Limitations.     343  n. 
Tender  or  set-off.     Young,  341. 
Pleas, 

Form  of,  general  issue.     337. 

Form  of,  statute  of  limitations.     337. 

ASSUMPSIT  (GENERAL), 

General  requisites.     Bovey.  247 ;    IMiller,  248 ;    254  n. 
When  and  whether  proper  for. 

Fixtures  sold  and  conveyed.     274  n. 


INDEX  641 

[The  figures  refer  to  pages] 

ASSUMPSIT  (GENERAL)— Continued, 

Goods  sold  and  delivered.     Atwood,  316 ;    317  n. 
Money  had  and  received.     Penobscot,  320;    324  n.  , 

Money  lent.     Marriot,  279. 
Money  paid.     City,  276 ;    Bonney,  319 ;    320  n. 
Partial  performance.     Expanded,  265  ;    Parker,  318. 
Real  property  sold  and  conveyed.     Nugent,  273. 
Tort  waived.    Aldine,  315 ;    218  u. 
Declaration, 

Form  of.     314. 

Necessity,  propriety,  and  form  of  allegations  as  to 

Anticipated  defenses.     327  n. 

Assignment.     Powell.  329 ;    330  n. 

Breach.     Yong  Den.  328  ;    329  n  ;   332  n. 

Consideration.     Hibbert,  315 :    315  n. 

Debt.     Hibbert,  315  ;    315  n  ;    McLeod,  330 ;    332  n. 

Promise.     City,  326 ;    328  n ;    Waid,  333 ;    332  n. 

Request.     Victors,  324 ;    325  n ;    326  n. 

Waiver  of  tort.     Aldine,  315. 
Effect  of  counts  in  special  assumpsit.    Lord,  254;   Leeds.  258. 

ASSUMPSIT  (SPECIAL), 
Decla  ration. 

Form  of.    288. 

Necessity  and  method  of  alleging 

Breach  by  defendant.     Stewart.  312 ;    313  B. 

Conditions.     Ferguson,  301;    Independent,  302;    303  n;    304  n; 

305  n. 
Consideration.     Smith,  292 ,    James,  293 ;    JLiansing,  298 ;    Wick- 

liffe,  298  ;    297  n  ;    301  n. 
Excuse    for    nonperformance    by    plaintiff.      Kern,    3u6;     Spann, 

309 ;    311  n. 
Performance  by  plaintiff.     Kern,  306. 
Promise.     Penny,  290;    291  n;    337  n. 
Provisos  and  exceptions.    Ferguson,  301. 

ASSUMPTION  OF  MORTGAGE  DEBT, 

Proper  action  to  enforce.     Miller,  248 ;    249  n. 

ASSUMPTION  OF  RISK, 

Necessity  and  method  of  negativing  in  declaration.    Dalton,  124 ;    127  n. 

ATTACHMENT, 

Justification  under,  how  pleaded  in  replevin.     Quincy,  238 ;    242  n. 
Replevin  against  sheriff  and  creditor  for  wrongful.    Richardson,  219. 

AVOWRY. 

See  Replevin. 

BANKRUPTCY, 

How  pleaded  in  assumpsit.     Gowland,  342. 

BILL  OF  PARTICULARS, 

As  part  of  declaration.    Aseltine,  494. 

When  granted.     Bogard,  491. 

Effect  of  upon  admissibility  of  evidence.     Aseltine,  494. 

BREACH, 

Method  of  alleging  so  as  to  apply  to  several  counts.     Green,  375. 

CAPACITY, 

Necessity  of  alleging  plaintiff's.     Bennington,  599. 

Method  of  putting  in  issue  capacity  in  which  defendant  is  sued.     Mc- 
Nulta,  179. 


642  INDEX 

tTbe  figures  refer  to  pages] 

CASE, 

Affirmative  defenses  in.    Greenwalt,  1S2 ;   Hill,  185 ;   188  n. 
Distinguished  from  debt  on  statute.     Mount,  86. 

From  assumpsit.     Zell,  75;    Royce,  78;    City,  82;    84  n. 
From  trespass.    Jordan,  1 ;   Wetmore,  11 ;   Drake,  13  ;   4  n ;   5  n ;   8  n. 
From  trover.     Ayer,  84. 
For  injury  to  easement.     Gerber,  95. 
For  injury  to  land.     George,  89 ;    Jackson,  92. 

See  Deceit ;    Defamation  ;    Malicious  Prosecution ;    Negligence. 
Declaration  in  for  deceit,  form  of.  161. 
Contents  of,  see  Deceit. 
For  injury  to  easement,  form  of.    94. 

Method  of  alleging  plaintiff's  right.     Gerber,  95. 
Method  of  alleging  defendant's  wrong.    97  n. 
For  injury  to  land,  form  of.     88. 

Method  of  alleging  plaintiff's  interest.     George,  89. 
For  libel,  form  of.     127. 

Contents,  see  Defamation. 
For  malicious  prosecution,  form  of.     157. 

Contents,  see  Malicious  Prosecution. 
For  negligence,  form  of.     97. 
Contents,  see  Negligence. 
For  slander,  form  of.     129. 
Contents,  see  Defamation. 
For  mesne  profits.  19  n. 
General  issue  in,  form  of.    176. 

Defenses  admissible  under.     Plowman,  176;    Archambeau,  178;    Mo- 
Nulta,  179  ;    Greenwalt,  182  ;    Hill,  185 ;    Brown,  187. 

CAUSAL  CONNECTION, 
See  Proximate  Cause. 

CAUSE  OF  ACTION, 

What  constitutes.    Neubeck,  576 ;    580  n ;   587  n. 

CHATTELS, 

Whether  ejectment  will  lie  for  dispossession.     61  lu 

COGNIZANCE, 
See  Replevin. 

COLOR, 

Express  and  implied.    Brown,  39 ;   41  n. 

COLLOQUIUM, 

See  Defamation. 

co:mmencbments  and  conclusions. 

Commencement  of  declarations.  473. 

Of  pleas.     475-477. 
Conclusion  of  declarations.  474. 

Of  pleas.    475-477  ;    Bailey,  477  ;    478  n  ;    Pitts,  616. 

COMMON  BAR, 

Explanation  of.     Martin,  459. 

COMMON  EMPLOYMENT, 

Necessity    of    negativing  in    declaration.      Libby,    122;     123   n;     124   n; 
Joliet,  467. 

CONCLUSION  OF  LAW, 

Method  of  alleging  consideration.     Wickliffe,  298. 
Duty.     Seymour,  432. 
Eviction  by  title  paramount.    Day,  434. 
Heirship.    Day,  434. 
Ownership.    435  n. 


INDEX  643 

[The  figures  refer  to  pages] 

CONCLUSION   OF  LAW— Continued. 

Performance  of  promise.     Kern,  306. 
Property  in  plaintiff.     Duggan,  19S. 
Sufficiency  and  effect  of  alleging.     Jackson,  114;    Kern,  306;    Seymour, 
432. 

CONDITIONS, 

See  Assumpsit  (Special). 

CONSENT  RULE, 

See  Ejectment. 

CONSIDERATION, 

See  Assumpsit  (General) ;    Assumpsit  (Special). 

CONSTRUCTION  OF  PLEADINGS, 

Generally.    Town.  424  ;   425  n  ;   Halligan.  15 ;    Corey,  412. 

General  and  specific  allegations,     Snyder,  115. 

On  appeal  and  error.     557  n. 

Dilatory  pleas.     Pitts,  616 ;    Goodlnie,  619. 

CONTRACT, 

Methods  of  declaring  upon  written.     North,  428 ;    429  n. 
See  Assumpsit. 

CONTRIBUTORY  NEGLIGENCE, 

Necessity  of  negativing  in  cleciaration  in  case.    City,  119 ;   121  n. 

COSTS,  ,^.  ^^^ 

Whether  recoverable  in  adt  ^^^    gp^*"""    ^iges  demanded.     Allen,  416. 

CONVERSION,  ui'shed.     Haley,/od       ,,. 

See  Trover.  ^35n;    Cla/ /^^r/-"^-     '"''"• 

COVENANT,  -^^Z^-    J 

On  a  penal  bond.    Douglas,  403.  ''  ^p/ 

For  sum  certain,  not  a  penalty.    404  n. 
Necessity  and  method  of  alleging  delivery.     406  n. 

Sealing.     Van  Santwood,  405. 
Issues  made  by,  and  evidence  admissible  under  plea  of  non  est  factum. 
391  n ;    394  n  ;    395  n. 
Covenants  performed.     Chewning,  406;    40S  n. 

DAMAGES, 

Costs,  whether  included  in.    Allen,  416. 

Distinction  between  general  and  special.     Jacksonville,  410 ;    Corey,  412. 

Excess,  right  to  remit.     418  n. 

Liquidated,  proiier  action  to  recover.    Butterfield,  260. 

Method  of  alleging  special.     Corey,   412 ;    415  n. 

Method  of  declaring  for  extra,  under  statute.     439  n. 

Necessity  of  alleging.     Terrell.  409. 

Proof  of  general,  under  allegation  of  special.     Jacksonville.  410. 

Recovery,  whether  limited  by  allegation  of.     Allen,  416 ;    416  n. 

Trespass,  without  re-entry,  amount  of.     Cooke,  IS.    After  re-entry.     19  n. 

DEATH  BY  WRONGFUL  ACT, 
See  Wrongful  Death. 

DEBT, 

On  simple  contract, 

Distinguished    from    assumpsit.      Flanagan,    352;     Thompson,    ,356; 

Rudder,  360  ;    361  n  ;    363  n ;   McGinnity,  374. 
Method   of   pleading  defenses.     McGavock,   387;     Ott,   388;    388   n; 

389  n  ;   .390  n. 
Plea  of  nil  debet.    386. 

Necessity  and  method  of  alleging  conditions  and  breach  by  defend- 
ant.    Green,  375;    Reynolds,  377:    Morris,  380;    380  n;    382  n. 
Fulfillment  of  conditions  by  plaintiff.    376  n. 
Promise  by  defendant.     McGinnity,  374. 


644 


DEBT 


INDEX 
[Ttie  figures  refer  to  pages] 


Continued, 

Whether  will  lie  for  or  on  negotiable  paper.     Anonymous,  349 ;    351 
n;    352  n. 

Quasi-contract.     350  n;    355  n. 

Simple  contract.    352  n. 

Sum  capable  of  ascertainment.     358  n. 

Sum  payable  in  installments.     Rudder  .360;    363  n. 

Sum  payable  in  property.     Crockett,  358. 

Sum  payable  in  property   or  money.     360  n. 

Sum  payable  in  non-legal  tender.     360  n. 
On  record, 

Necessity  and  method  of  alleging  jurisdiction.     Sheldon,  383;    384  n. 
Whether  will  lie  on  foreign  judgment.     Walker,  365. 
Nil  debet,  effect  of  pleading.     Judkins,  399;    397  n. 
Nul  tiel  record,  form  of  plea.    386. 

When  proper.     Walker,  365. 

Issues  raised  by.     Buford,  398 ;    399  n. 
On  specialty, 

Distinguished  from  debt  on  simple  contract.    Dyer,  363;   365  n. 
Form  of  count.     370. 

Method  of  declaring  on  bond  with  conditions.     Reynolds,  377;    Mor- 
ris, 380 ;    380  n. 
Necessity  and  method  of  alleging  breach.    Reynolds,  377. 

Fulfillment  of  conditions  precedent.     Hart,  383. 

Amount  of  recovery  dem.s?-'^'-"      United  States,  371;    373  n. 
When  will  lie.     355  n*  I76. 
Nil  debet,  propriety  of\pder.     Plown"er,  363. 

Effect  of  pleading.  Ut,  182i--,H.y0. 
Non  est  factum,  form  of  plea.     386. 

Issues  raised  by.     Landt,  390. 

Evidence  admissible  under.    Edwards,  391;    393  n;   394  n;    Van 
Valkenburg,  394;    395  n. 
On  statute, 

Distinguished  from  case.    Mount,  86. 

Necessity  of  pleading  exceptions  and  provisos  in  declaration.    White- 
craft,  384 ;    385  n. 

DECEIT, 

Necessary    allegations    in    declaration.      Pforzheimer,    162 ;     West,    166 ; 

Fovi^ler,  168  ;  '  Watson,  170 ;   170  n  ;    173  n  ;    Belmont,  175. 
Method    of    alleging    defendant's    knowledge    of   falsity.      Watson,    170; 

173  n. 
Distinguished  from  breach  of  warranty.    West,  166. 

DECLARATION, 

Commencements  and  conclusions.     473,  474. 
Form  of,  in  assumpsit  (special).     288. 

Assumpsit   (general).     314. 

Case  for  injury  to  easement.     94. 

Case  for  injury  to  land.     88.  ■ 

Debt.     370. 

Deceit.     101. 

Ejectment.    61;   62. 

Libel.     127. 

Malicious  prosecution.     157. 

Negligence.     97. 

Replevin.     226. 

Slander.     129. 

Trespass.    25;  26;   27. 

Trover.     195. 

DEFAMATION, 

Colloquium,   necessity   and  purpose   of. 
Milligan,  149;    Clement,  151;    153  n. 


Brettun,   136;    137  n;    139  n; 


INDEX  645 

[The  figures  refer  to  pages] 

DEFAMATION— Continued, 

Defamatory  matter,  method  of  alleging.     Kenyon,  132 ;    133  n ;    Whiting, 

134 ;    134  n ;    135  n  ;    137  n. 
Inducement,  necessity  and  purpose  of.     Jones,  131 :    Brettun,  136 ;    Mil- 

ligan,  149  ;    150  n  ;    151  n  ;    Coleman,  153. 
Innuendo,  scope  and  purpose  of.    Peake,  139 ;   138  n ;   Roella,  142 ;   141  n ; 

Duvivier,   144. 
Necessity  and  method  of  alleging  special  damage.    415  n. 
Falsity.     Webster,  155. 
Malice.     Webster,  155. 

Publication.     Waistel,  143;    144  n;    Duvivier,  144;    148  n. 
Privilege,  how  pleaded.     188  n. 
Truth,  how  pleaded.     Greeuwalt,  182;    184  n. 

DEFAULT, 

What  defects  cured  by.     550  n ;    Dunn,  564 ;    566  n. 

DEFINITENESS, 

See  subheads,  "method  of  alleging,"  under  various  headings. 
DEMUKKER, 

Admissions  by,  nature  and  scope  of.     Lamphear,  521 ;    523  n ;    525  n ; 

Hale,  526. 
Defects  reached  by.     Hale,  526;    526  n;    State,  528;    529  n;    Humphrev, 

623 ;    Dunlevy,  532. 
Dilatory  pleas,  defects  in  attacked  by.    Humphrey,  623 ;    624  n. 
Judgment  on  demurrer  to.     Clark,  626 ;    627  n. 
Searching  record.     Ryan,  625. 
General  and  special  distinguished.     Hale,  526 :    526  n. 
Judgment  on.     Silver,  .534 ;    535  n ;    Clark,  626 ;    627  n. 
Plea  and,  whether  permitted.     Rickert,  509 ;    510  n. 

Searching  the  record.     Moore,  529 ;    529  n ;    Auburn,  530 ;    532  n ;    Dun- 
levy,  532;    Ryan,  625. 
Speaking.     State,  528 ;    528  n. 

Several  counts,  effect  of  demurrer  to  jointly.     Standiford,  430 ;    Langlev, 
534 ;   534  n. 

DEPARTURE, 

Wliat  constitutes.     Potts,  453 ;    Teatman,  455 ;    455  n ;    Allen,  456. 
In  amendments.     Allen,  585. 

DESCRIPTION, 

Goods  in  detinue,  replevin,  trover.     Haynes,  488 ;    489  n. 
Place  of  wrong.     Mehrhof,  4S3  ;    486  n. 
Plaintiff's  property  in  ejectment.     Goodright,  59. 
Quantity.     Deming,  489. 
Time.     Gordon,  486  ;   487  n. 

DETINUE, 

Description  of  goods  in.     Haynes,  488. 
Prior  possession  as  basis  for.     192  n. 

DILATORY  OBJECTIONS, 

Another  action  pending.     Morton,  607. 
Disability  of  plaintiff.     Bennington,  599;    603  n. 
Lack  of  jurisdiction.     Thomas,  615  ;    615  n  ;    616  n. 
Misjoinder  of  parties.     606  n. 
Misnomer.     Humphrey,  623 ;    624  n. 

Nonjoinder  of  parties.     Burgess,  604 ;    Prunty,  610 ;    606  n. 
Property  in  third  person  in  reple\'in.     Presgrave,  211 ;    211  n. 
When  available  on  motion.    Morton.  007;    608  u. 
See  Dilatory  Pleas. 

DILATORY  PLEAS, 

How  pleaded.     Pitts,  616. 

How  construed.     Pitts,  616:    Goodhue,  619. 

Requisites  of.    Goodhue,  619 ;   620  n. 


646  INDEX 

[Tbe  figures  refer  to  pages] 

DILATORY  PLEAS— Continued, 
How  attacked.     Humphrey,  623. 
Judgment  on.     Clark,  626 ;    Ailing,  628 ;   629  n. 

DIRECT  IN.JTIRY, 

Distinguislied  from  indirect.  Jordan,  1;  James,  6;  Barnum,  7;  Drake, 
13  ;    Hobbs,  14 ;    15  n. 

DISCHARGE, 

Matters  in,  how  pleaded,  see  Affirmative  Defenses. 

DISTRESS, 

How  pleaded  in  replevin.    English,  244. 

DUE  CARE, 

Necessity  and  luanner  of  alleging.     City,  119 ;    121  n. 

DUPLICITY, 

What  constitutes.    People's,  495  ;    Raymond,  497  ;   499  n ;    Stephens,  500 ; 

500  n. 
Several  causes  in  one  count.     People's,  495;    490  n. 
All  common  counts  in  one.    497  n. 

Several  sets  of  defamatory  words  in  one  count.     Milllgan,  149. 
Bad  and  good  defenses  in  one  plea.     Stephens,  500. 
General  issue  with  notice.     Rosenbury,  501. 
Replication  de  injuria.     Bardons,  503. 
In  plea  in  abatement,  how  challenged.     624  n. 

DUTY, 

Necessity  and  method  of  alleging  in  case  for  negligence.  Ensley,  98; 
100  n  ;    Southern,  100  ;    Maenner,  109. 

EASEMENT, 

Method  of  alleging  plaintiff's  right  to.     Gerber,  95 ;    97  n. 
Proper  action  for  injury  to.    Wetmore,  11 ;    61  n. 

EJECTMENT, 

Description  and  history  of  action.     48-52. 

Statutory  provisions.     52-54. 

Interest  or  title  necessary  to  maintain.  Casey,  55 ;  Smith,  57 ;  Raw- 
son,  63. 

Necessary  allegations  in  declaration.     Rawson,  63 ;    Bush,  64 ;    65  n. 

Consent  rule,  effect  of  entering.     Goodright,  59. 

Defenses  in,  how  pleaded.  Bernard,  67 ;  Gumming,  68 ;  Dickerson,  71 ; 
Taylor,  72. 

ERROR, 

Construction  of  pleadings  on.     556  n. 

Defects  in  pleadings  available  on.    Maher,  555 ;    556  n ;    557  n. 

ESTOPPEL, 

Of  an  anticipated  defense.     Smith,  471 ;    472  n. 

EVIDENCE, 

Sufficiency  and  effect  of  allegations  of.     Bond,  226;    Cox,  427;    428  n. 
Alleging  written  instrument  in  h^ec  verba.     North,  428;    429  n. 
Alleging  conclusions  from.     Standiford,  430. 
Objection  to,  as  method  of  attacking  pleadings.     Adams,  538. 

EXCUSE, 

See  Affirmative  Defenses. 

FALSE  IMPRISONMENT, 

Distinguished  from  malicious  prosecution.     Hobbs,  14;    15  n. 

FELLOW  SERVANT, 

See  Common  Employment. 

FOREIGN  LAW, 

Necessity  of  pleading.     O'Reilly,  105. 


INDEX  647 

[The  figures  refer  to  pages] 

FORMER  RECOVERY, 

See  Affirmative  Defenses. 

FORM  OF  ACTION, 

Whether  matter  of  substance  or  of  form.    Flanagan,  352. 

Whether  mistake  in  available  except  on  demurrer.     Savignac,  551 ;  552  n. 

Whether  pleadable  in  bar  or  in  abatement.     618  n. 

FRIVOLOUS  PLEADING, 

What  constitutes,  and  remedy  for.     Shotwell,  537;    538  n. 

GENERAL  ISSUE, 

Admissibility   of  defenses  arising   after   action  brought.     Pemigewasset, 

478;    479  n. 
In  assumpsit,  form  of.    337. 

Defenses  admissible  under.     Ward,  338 ;    339  n ;    340  n  ;    Young,  341 ; 

342  n. 
Defenses  required  to  come  under.     Baltimore,  343;    346  n. 
In  case,  form  of.     176. 

Defenses  admissible  under.     Plowman,  176 ;    Archambeau,  3  78 ;    Mc- 

Nulta,  179;    Greenwalt,  182 ;    Brown,  187;    181  n;    187  n. 
Defenses  required  to  come  under.     188  n. 
lu  debt,  forms  of.     386. 

See  Debt. 
In  ejectment,  form  of.    66. 

Defenses  admissible  under.     Goodright,  59;    Bernard,  67;    Gumming, 
68;    Taylor,  72. 
In  replevin,  forms  of.    229 ;    230. 

Non  cepit,  issues  raised  by.     Hopkins,  231 ;    232  n. 
Non  detinet,  when  a  proper  plea.    233  n ;    Ferrell,  234 ;    Paul,  242. 
In  trespass,  form  of.    32. 

Defenses  admissible   under.     Herrick,   33;    Boss,  34;    34  u;    36  u; 

Fisher,  37. 
Defenses  required  to  come  under.     Brown.  39 ;    41  n. 
In  trover.     Hurst,  200  ;    205  n  ;    Miller,  206  ;    210  n. 

GENERAL  ISSUE  WITH  NOtlCE, 

As  substitute  or  alternative  for  special  plea.     Rosenbury,  501 ;    503  n. 
Sufficiency  and  function  of  notice.     Rosenbury,  501. 
Method  of  attacking  notice.     Folsom,  562. 

HYPOTHETICAL  PLEADING,  Griffiths,  519. 

ILLEGALITY, 

How  pleaded.     Jackson,  114.;    McGavock,  387. 

IMMATERIAL  ALLEGATIONS, 

Effect  of  taking  issue  on.     Basan,  442. 
When  made  material.    Tatem,  444. 

INCONSISTENCY, 

Between  allegations  of  same  pleading.     Priest,  447 ;    446  n. 

Between  counts.     Seal,  446. 

Between  general  and  specific  averments.     Standiford,  430 ;    431  n. 

Between  pleas.     Lamotte,  230;    Whitaker,  449;    448  n. 

Between  specific  averment  and  conclusion  from  evidence  pleaded.    431  n. 

INCORPORATION, 

Necessity   of  alleging.     Bennington,   599. 
How  put  in  issue.     Bennington,  599 ;    602  n. 

INCORPORATION  BY  REFERENCE, 

To  what  extent  permissible.     IMardis',  436 ;    437  n. 
Method  of.     437  n. 

INDEBTEDNESS, 

Method  of  alleging  in  general  assumpsit.     Hibbert,  315 ;    315  n. 

Wiiit.C.L.Pl.— 42 


648  INDEX 

[Tte  figures  refer  to  pages] 

INDEBITATUS  ASSUMPSIT, 
See  Assumpsit  (General). 

INNUENDO, 

See  Defamation. 

INSTALLMENTS, 
See  Debt. 

INSURANCE  POLICY,  .^  ' 

Proper  action  upon.    Flanagan,  3-52. 

JUDGMENT, 

On  demurrer.     Silver,  534 ;    535  n. 

On  demurrer  to  plea  in  abatement.     Clark,  626 ;    627  n. 
On  issue  taken  on  plea  in  abatement.    Ailing,  628 ;    629  n. 
Form  of  action  upon.     Walker,  365 ;    369  n ;    370  n. 
Method  of  declaring  on.     Sheldon,  3S3 :    .384  n;    433  n. 
Method  of  pleading  invalidity  of.     Buford,  398 ;    Judkins,  399. 
See  Arrest  of  Judgment. 

JUDGMENT  NOTWITHSTANDING  VERDICT, 

When  and  in  whose  favor  granted.     Plunkett,  552 ;    553  n. 
Distinguished  from  repleader.     Otis,  554. 

JUDICIAL  NOTICE, 

Necessity  of  pleading  facts  of  which  court  takes.     People,  438;    439  n. 

JURISDICTION, 

Lack  of,  how  pleaded.     Thomas,  615 ;    615  n ;    616  n. 
Necessity  of  alleging  affirmatively.     Flanders,  597. 

JUSTIFICATION, 

How  pleaded,  see  Affirmative  Defenses. 

LAW, 

See  Conclusion  of  Law ;    Statute. 

LIBEL, 

See  Defamation. 

LIBERUM  TENEMENTUM, 

Form  of  plea  in  trespass.     32. 

How  pleaded.     Dodd,  35;    Fisher,  37. 

LICENSE, 

How  pleaded,  see  Affirmative  Defenses. 

LIMITATIONS, 

See  Statute  of  Limitations. 

LOCAL  ACTION. 

Distinguished  from  transitory.     Mehrhof,  483. 

Effect  of  variance  between  allegation  and  proof  as  to  venue.    486  n. 

MALICIOUS    PROSECUTION, 

Necessary  allegations  in  declaration.     Findley,  158 ;    Pippet,  158 ;    158  n : 

159  n;    Perdu,  160;    160  n;    161  n. 
Probable  cause,  how  pleaded.     Brown,  187. 
Issues  raised  by  general  issue.     Brown,  187 ;    187  n. 

MISJOINDER   OP  CAUSES, 

Assumpsit  and  debt.     McGinnity,  374. 
Whether  cured  by  verdict.     Bull,  549. 
By  default.     550  n. 

MISJOINDER  OF  PARTIES, 

See  Parties;    Dilatory  Objections. 


I 


I 


INDEX  649 

[The  figures  refer  to  pages] 

MESNE  PROFITS, 
In  case.    19  ii. 
In  ejectment.     19  n. 
In  trespass.     Cooke,  18. 

MONEY  MISAPPROPRIATED, 

Proper  form  of  action  to  recover  for.    Eoyce,  78. 

MOTION  TO  STRIKE, 

When  a  proper  remedy.    Walpole,  536;    Shotwell,  537;    Adams,  538. 
Frivolous  pleadings.    "Shotwell,  537 ;    536  n ;    537  n ;    538  n. 
Sham  pleadings.    Walpole,  536  ;   536  n. 

NEGATIVE  PREGNANT, 

Ambiguity  of.     446  n. 

Definition  and  effect  of  pleading.    Howk,  445. 

NEGLIGENCI5. 

Necessity  and  method  in  declaration  for,  of  alleging  plaintiff's  right  and 
defendant's  duty.     Ensley,  98 :    Southern.  100 ;    Maenner.  109. 
Defendant's  wrong.     Maenner,  109 ;    Jackson,  114 ;    King,  111 ;    Sny- 
der, 115. 
Necessity  of  negativing  in  declaration, 

Assumption  of  risk.     Dalton,  124 ;    127  n. 
Common  employment.     Libby,  122 ;    123  n ;    124  n. 
Contributory  negligence.     City,  119. 

NEGOTIABLE  PAPER, 

When  debt  will  lie.     Anonymous,  349 ;    351  n ;    352  n. 
When  general  assumpsit  will  lie.     Penn,  280 ;   283  n ;    284  n. 

NEW^  ASSIGNMENT, 

When  proper  in  trespass  to  realty.     Martin,  459. 

In  trespass  to  person.     Ditcham,  462 ;    460  n ;    463  n. 
When  required  for  matters  of  aggravation.    463  n. 
Whether  required  to  plea,  of  payment.    465  n. 
Effect  upon  prior  pleadings.     Hall,  463 ;    465  n. 

NIL  DEBET, 

See  Debt;   General  Issue. 

NON  CEPIT, 

See  Replevin  ;    General  Issue. 

NON  DETINET, 

See  Replevin  ;    General  Issue. 

NONJOINDER  OF  PARTIES, 
See  Parties. 

NONSUIT, 

Whether  proper  to  attack  pleadings.     Sadler,  541;    542  n. 

NOT  POSSESSED, 

As  a  defense  in  ejectment.    Dickerson,  71. 

How  pleaded  in  ejectment.     Goodright,  59;    Bernard,  67;    Gumming,  68. 

NUL  TIEL  RECORD, 
See  Debt. 

OBJECTION  TO  EVIDENCE, 

See  Evidence. 

OFFICIAL,  DUTY, 

Action  for  breach  of.     278  n. 

OVERNARROW  DENIAL, 

Effect  of  interposing.     Phillips,  441 ;    Basan,  442. 


I 


650  INDEX 

[Tbe  figures  refer  to  pages] 

OWNERSHIP, 

Sufficiency  and  method  of  alleging  in  trespass  de  bonis.    Rocker,  30 ;  31  n. 
Requisite  to  maintain  ejectment.    56  n. 
See  Conclusion  of  Law. 

PARTIAL  DEFENSE, 

Method  and  sufficiency  of  pleading.     Flemming,  439. 

Effect  of  pleading  as  total  defense.     Dickerson,  71. 

Effect  of  pleading  puis  darrein  continuance.     Davis,  481. 

Effect  of  failure  to  enter  judgment  on  portion  not  answered.    Flemming, 
439 ;    441  n. 

To  several  counts  jointly.    534  n. 
PARTICULARITY, 

Effect  of  alleging  with  unnecessary.    Tatem,  444;   445  n. 

PARTICULARS, 

See  Bill  of  Particulars.  * 

PARTIES, 

Amendment  adding  or  striking.    Ayer,  592  ;    592  n ;   593  n. 

Changing  character  or  capacity.     Lewis,  594;    Walker,  595;    595  n; 

596  n. 
Substituting  real  for  nominal.     Buckland,  593 ;    594  n. 
Misjoinder  of  plaintiffs  in  contract.     613  n. 
Of  plaintiffs  in  tort.     606  n  ;    Gerry,  612. 
Of  defendants  in  contract.     Walcott,  613. 
In  tort.     614  n. 
Nonjoinder  of  plaintiffs  in  contract.     Burgess,  604 ;    605  n ;    Prunty,  610 ; 
610  n. 
Of  plaintiffs  in  tort.     Gerry,  612;    610  n. 
Of  defendants  in  contract.     Burgess,  604. 

Of  defendant  having  defense  of  personal  discharge.     Goodhue,  619. 
Necessity  of  excusing  nonjoinder  in  declaration.     Burgess,  604. 

PENALTY, 

Action  for.    Mount,  86  ;   87  n ;   United,  371. 
PLACE, 

Necessity  and  method  of  alleging.     Mehrhof,  483 ;    486  n. 

Effect  of  variance  between  pleading  and  proof.    486  n ;   Deming,  489. 
PLEA, 

Commencements  and  conclusions.     475-477. 
PLEA  AND  DEMURRER, 

When  permissible.     Rickert,  509;    510  n. 

PLEADING  OVER, 

Defects  cured  by.    Bauman,  560. 

PLEADINGS, 

Whether  relief  granted  on  adversary's.    427  n. 

POSSESSION, 

Necessity  and  sufficiency  of  showing  by  plaintiff  in  detinue.     192  n. 
By  plaintiff  in  ejectment.     Smith,  57 ;    56  n ;    Bush,  64 ;    65  n. 
By  defendant  in  ejectment.     Goodright,  59. 
By  defendant  in  replevin.     Richardson,  219.;    221  n. 
By  plaintiff"  in  trespass  q.  c.  f.     Gillespie,  21 ;    Graham,  22. 

In  trespass  de  bonis.     Wincher,  23 ;    Halligau,  15 ;    Burser,  25 ; 
25  n;    Nachtrieb,  20. 
By  plaintiff'  in  trover.     Clark,  191. 
Presumption  arising  from  prior.     Shaw,  56  n. 
Right  to  immediate,  suthciencj'  of  in  ejectment.     56  n. 
Trespass  de  bonis.     Nachtrieb,  20 ;    Burser,  25. 
Trespass  q.  c.  f.    Gillespie,  21. 

Whether   admissible    under    general   issue   in   trespass   q.   c.   f. 
Dodd,  35. 


INDEX  651 

[Tttie  figures  refer  to  pages] 

PREMATURITY  OF  ACTION, 

Whether  in  bar  or  abatement.     Pitts,  616;    618  n. 

PROFIT, 

Action  to  redress  injury  to  exclusive  right  of.    12  n. 

PROMISE, 

Necessity   and  method   of   alleging  in   assumpsit.     Penny.    290;     291   n; 

Smith,  292  ;    292  n ;    Parker,  304. 
Necessity  of  alleging  excuse  for  plaintiff's  nonperformance.     Kern,  306 ; 

Spann,  309;    311  n. 
Necessity  and  method  of  alleging  breach  of.     Stewart,  312 ;    313  n. 

PROXIMATE  CAUSE, 

Necessity  and  method  of  alleging  in  case. 
For  deceit.     Belmont,  175. 
For  negligence.     McGanahan,  118 ;    119  n. 

PUBLIC  CALLIN'G, 

Action  for  breach  of  duty  in.     77  n. 

SufBciency  of  allegation  as  to.     Southern,  100 ;    104  n. 

PUIS  DARREIN  CONTINUANCE, 

Effect  of  plea  upon  pleas  originally  filed.     Davis,  481. 

Effect  of  plea  not  going  to  merits.     Davis,  481. 

When  payment  should  be  pleaded.     Pemigewasset,  478. 

<JUANTITT, 

When  allegation  of,  material.     Deming,  489. 

QUANTUM  MERUIT  OR  VALEBANT, 

Necessity  of  count  in  for  partial  performance.     Parker,  318. 
For  reasonable  value  of  services.     Thompson,  356 ;    358  u. 
For  definite  sum  due  by  contract.    319  n. 
See  Assumpsit  (General). 

QUASI-CONTRACT, 

Whether  case  will  lie  for.  breach  of.    84  n. 

REAL  PROPERTY, 

Common  count  for  realty  sold  and  conveyed.    Nugent,  273. 

RECITALS, 

Sufficiency  of  allegations  by  way  of.     Brown,  515 ;    517  n. 
RECOUPMENT, 

History  of.    634  n. 

How  pleaded.     Barber,  631. 

REMAINDER, 

Action  to  redress  injury  to.     Halligan,  15 ;    17  n. 

REPLEADER, 

When  granted.     Otis,  554  ;    553  n. 

REPLEVIN, 

Against  sheriff.     Phillips.  221;    222  n. 

Against  sheriff  and  attaching  creditor.     Richardson,  219. 

Against  party  who  has  parted  with  possession.     221  n. 

Avowry  and  cognizance,  form  of.     231. 

Avowry  and  property  in  stranger  distinguished.     Quincy,  238;    Simcoke. 

243. 
Avowry  for  distress,  requisites  of.     English,  244 ;    246  n.- 
Distinguished  from  trespass  and  trover.     Walpole,  212. 
Defendant's  wrong. 

Character   of  taking  necessary   to   maintain.     215   n ;     Carter,   227 ; 

229  n. 
Whether  wrongful  detention  necessary.     Osgood,   214 ;    214  n ;    La- 
motte,  236. 


652  INDEX 

[TThe  figures  refer  to  pages] 

REPLEVIN— Continued, 

Detinet  and  cepit  distinguished.     Osgood,  214 ;    217  n. 

Detention,  wliether  includes  caption.     Osgood,  214. 

Non  cepit,  allegations  put  in  issue  by.    Hopkins,  231 ;    232  n ;   243  n. 

Non  detinet,  wlien  a  proper  plea.     Ferrell,  234  ;   233  n. 

Issues  raised  by.     Paul,  242. 
Plaintiff's  right, 

Necessary  allegations  as  to.     Bond,  226 ;    227  n. 

What  interest  necessary.    Walpole,  212 ;    214  n. 
For  what  property.     Powell,  217. 
Property  in  stranger. 

How  pleaded.     Lamotte,  236;    238  n. 

Character  of  plea.     Presgrave,  211 ;    211  n. 

Evidence  admissible  under.     Lamotte,  236 ;    238  n. 
Property  in  defendant. 

How  pleaded  and  supported.     Quincy,  238. 
Return  of  property,  when  ordered.     Quincy,  238 ;    240  n. 
Statutory  general  issue.     Ferrell.  234;    Holliday,  235;    236  n. 
Trial  of  title  to  realty  in.    Powell,  217. 

REPLICATION  DE  INJURIA, 

In  what  actions.     Bardons.  503 ;    505  n. 

To  what  pleas.     Bardons,  503 ;    505  n ;    509  n. 

REPUGNANCY, 

See  Inconsistency. 

REPUTATION, 

Necessity  of  allegation  as  to  in  defamation.    Jones,  131. 
See  Defamation. 

REVERSION, 

Action  to  redress  injury  to.    Halligan,  15 ;    17  n ;    Ayer,  84. 
Description  of  in  declaration  in  case.    George,  89. 
Method  of  alleging  injury  to.     Jackson,  92. 

SEALED   INSTRUMENT, 

Action  upon.     McManus,  284;    286  n;    First,  287;    288  n. 
Action  where  sealed  instrument  modified.     286  n. 
Method  of  alleging  sealing.     Van,  405. 

SET-OFF, 

Nature  of.     Coe,  636. 

How  pleaded.     Coe,  636;    637  n. 
SHAM    PLEADING, 

What  constitutes,  and  remedy  for.     Walpole,  536 ;    536  n ;    537  n. 
SLANDER, 

See  Defamation. 

SPECIAL  ASSUMPSIT, 

See  Assumpsit  (Special). 

SPECIAL  TRAVERSE, 
See  Traverse,  Special. 

STATUTE, 

Action  for  damages  by  breach  of  remedial.     Mount,  86. 
Action  for  statutory  penalty.     Mount,  80;    87  n;    Uiaited,  371. 
Method  of  alleging  compliance  with.     Green,  420 ;    421  n. 
Method  of  pleading  in  actions  for  extra  damages  under.     439  n. 
Method  of  pleading  foreign.     Benham,  510. 
Necessity  of  pleading.     O'Reilly,  105 ;    105  n. 

STATUTE  OF  LIMITATIONS, 

Anticipating  defense  of.     Wall,  4G9. 

As  affecting  right  of  amendment.     Tobias,  567 ;    508  n ;    Neubeck,  576 ; 
580  n ;    Allen,  585. 


INDEX  G53 

[Tbe  figures  refer  to  pages] 

STATUTE  OF  LIMITATIONS— Continued, 
How  pleaded  in  assumps-it.    337 ;    343  n. 
In  case.     Hill,   1S5. 
In  debt.     388  n. 
In  ejectment.     Taylor,  72. 
In  replevin.     238  n. 
In  trespass.     Bellows,  47. 
In  trover.     210  n. 

SUM  CERTAIN, 

^Meaning  of.     Thompson,  356. 

As  requisite  of  debt.     Flanagan,  352;    355  n;    Thompson,  356;    United, 
371;    Hale,  526. 

TENANCY-AT-WILL; 

Action  maintainable  by  owner  for  injury  to  estate  subject  to.     Halligan, 
15 ;  ■  17  n. 

THEORY  OF  PLEADING, 

How  far  pleader  bound  by  his.    Charnley,  425 ;    427  n. 

TIME, 

Necessity  and  method  of  alleging.     Gordon,  486;    487  n. 
Effect  of  variance  as  to.    487  n. 

TITLE, 

Description  of  plaintiff's  in  ejectment.     Rawson,  63. 

Method  of  alleging  generally.     Day,  434;    435  n. 

Proof  to  sustain  allegation  in  ejectment.     Rawson,  63 ;    63  n. 

In  defendant,  how  pleaded  in  trespass.    Dodd,  35  ;  Fisher,  37  ;  Brown,  39. 

In  stranger,  as  defense  in  ejectment.    Casey,  55. 

TRANSITORY  ACTION, 

Distinguished  from  local.     Mehrhof,  483. 

Effect  of  variance  between  allegation  and  proof  as  to  venue.    486  n. 

TRAVERSE,   SPECIAL, 

Distinguished  from  common.     Beatty,  512. 
Form  and  requisites  of.     Beatty,  512 ;    230. 
Method  of  taking  issue  on.     Beatty,  512 ;    211  n. 
Method  of  attacking  sufficiency  of.     515  n. 

TRAVERSE  DE  INJURIA, 
See  Replication  de  Injuria. 

TRESPASS, 

Against  bailee.     10  n. 

Against  transferee  from  trespasser.    Wilson,  9 ;   10  n. 
Against  trespasser  from  trespasser.     10  n. 
Damages.    Cooke,  18 ;    19  n. 

Description  of  close  in  trespass  q.  c.  f.    Martin,  459. 

Distinguished  from  case.     Jordan,  1 ;    Barnum,  7 ;    8  n ;    Wetmore,  11 ; 
Drake,  13;    Halligan,  15. 
From  replevin.     Walpole,  212. 
Mesne  profits,  whether  reco\eral)le.     Cooke,  18 ;    19  n. 
New  assignment  in.     Martin,  459 ;    Ditcham,  462 ;    463  n. 
Necessary  allegations  in  declaration.     Iliggins,  28 ;    Hight,  29 ;    Rocker, 
30 ;    30  n ;    31  n. 
Pleas,  see  General  Issue ;    xVffirmative  Defenses. 

TROVER, 

Conversion,  what  constitutes.     Knapp,  192. 

Method  of  alleging.    Duggan,  198. 

Necoshity  of  alleging.    Baker,  196. 
Distinguished  from  case.     Ayer,  84. 

From  replevin.    Walpole,  212. 
Jus  tertii,  when  a  defease.     190  n. 
Losing  and  finding,  necessity  of  alleging.     Royce,  199. 


654  INDEX 

[The  figures  refer  to  pages] 

TROVER— Continued, 

Property  of  plaintiff,  what  necessary  to  maintain.     Swift,  1S9 ;    190  n ; 
Clark,  191 ;    191  n  ;    Knapp,  192 ;    192  n  ;    218  n. 
Method  of  alleging.     Warren,  195;    Baker,  196;    Duggan,  19S. 
Recovery  by  si)ecial  owner  as  affecting  rights  of  general  owner,  and  vice 
versa.     191  n. 

TRUTH, 

How  pleaded  in  defamation.     Greenwalt,  182;   184  n. 

VALUE, 

Necessity  of  alleging.     Hawkins,  418. 
VALUE  RECEIVED, 

Effect  of  recital  in  written  promise.     Lansing,  298 ;    301  n. 
VARIANCE, 

Between  allegation  and  proof  as  to  amount  due  in  debt.     United,  371 ; 
373  n;    Hale,  526. 

As  to  consideration.     James,  293;    Lansing,  298. 

As  to  crime  charged,  in  malicious  prosecution.     159  n. 

As  to  the  defamatory  matter  in  libel  and  slander.     134  n. 

As  to  damages.     Jacksonvillo,  410. 

As  to  knowledge  of  falsity  by  defendant.     West,  166. 

As  to  performance  of  conditions.     Spann,  309;    311  n. 

As  to  defendant's  promise.     Parker,  304. 

As  to  quantity.    Deming,  489. 

As  to  time.     487  n ;    Penn,  280. 

As  to  venue.     486  n. 

VENIRE  DE  NOVO, 

When  granted  instead  of  arrest  of  judgment.    Posnett,  547 ;   550  n. 
VENUE, 

Necessity  and  manner  of  alleging.     Mehrhof,  483 ;  486  n. 

Effect  of  variance  between  allegation  and  proof.    486  n. 

VERDICT, 

Defects  cured  by.     Bedell,   542;    City,   546;    Bull,  549;     Savignac,  551; 
Dunn,  564. 

VIDELICIT, 

Office  and  effect  of.    487  n ;    Deming,  489 ;    490  n. 

VI  ET  ARMIS, 

Necessity  of  allegation  in  trespass.    Higgins,  28. 

WAIVER, 

Of  defects  by  agreed  statement.     Inhabitants,  561. 

By  evidence  without  objection.     Folsom,  562 ;    563  n. 

By  pleading  over.     Bauman,  560. 

By  reference  by  consent.    562  n. 
Of  tort,  necessity  of  alleging.     Aldine,  315. 

WARRANTY, 

.  Action  for  breacli  of  nonfraudulent.    81  n. 

WRONG  FORM  OF  ACTION, 

See  Form  of  Action. 

WRONGFT'L  DEATH, 

Necessary  allegations  in  action  for.     O'Reilly,  105;    Westcott,  105;    107 
n ;    108  n. 


WEST  PUBLISHING  CO.,  PRINTEKS,  ST.  PAUL,  MINN. 


I 


AA    000  853  197    2 


